The Hon. Pauline Newman v. The Hon. Kimberly A. Moore, et al.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Click here to read the full document.

Washington, DC (February 7, 2024) – Today, the Committee on Judicial Conduct & Disability denied the New Civil Liberties Alliance’s petition on behalf of the Hon. Pauline Newman to review the Judicial Council of the Federal Circuit’s unlawful order suspending her from hearing new cases for at least a year. The Council’s suspension came on top of the months the Council had already suspended her during the investigation, which violated the Judicial Conduct and Disability Act that the Council purported to be applying. The Judicial Conduct & Disability Committee upheld Judge Newman’s suspension, a decision with which NCLA thoroughly disagrees. NCLA will continue challenging Judge Newman’s suspension and seeking her rightful restoration to the bench.

Judge Newman’s indefinite suspension is unprecedented in American judicial history, exceeding sanctions imposed on judges who committed serious misconduct and improprieties. Throughout the process, the Judicial Council changed the rationale for its actions and even altered its allegations, all to accomplish an apparently predetermined outcome. In March 2023, the Judicial Council indefinitely suspended Judge Newman from hearing new cases before any formal investigation began. In violation of the due process of law, Chief Judge Moore and the Judicial Council refused to transfer the investigation to another circuit’s council, despite being fact witnesses to the events in dispute. The Judicial Conduct & Disability Committee erroneously decided that the Council did not abuse its discretion by refusing to transfer and that the Council did not deny Judge Newman due process.

The Judicial Council’s factually baseless and procedurally defective suspension of Judge Newman deprives her of the constitutional right and obligation to continue in her lifetime appointed judicial office. It also violates the procedural due process protections built into the statute and rules the Judicial Council claims to be enforcing.

Both the Council’s and the Committee’s actions are “administrative” rather than “judicial,” confirming NCLA’s right to challenge the Judicial Council in district court for overstepping its authority. The Committee’s decision unfortunately fails to protect the impartiality of judges, and it authorizes sanctions the Judicial Conduct and Disability Act does not permit, saying that the Council’s suspension order does not exceed its statutory authority.

The Committee’s ruling says the Judicial Council had a reasonable basis to order Judge Newman to undergo a mental examination early in the investigative process. But the Judicial Council lacked any factual predicate to make such a request. Judge Newman also voluntarily submitted to two separate mental health examinations by two expert medical professionals. She was properly tested. She passed twice and has since shown her unquestionable vigor in her recently issued opinions and speeches at public events honoring her myriad achievements. Oddly, the Judicial Council dismissed the validity of both medical examination reports, substantively mischaracterizing the examinations those doctors conducted and substituting their own Google search for the considered opinions of two board-certified medical experts. The Committee shockingly ruled that the Judicial Council did not err in rejecting these doctors’ reports. The U.S. District Court for the District of Columbia is still considering the merits of NCLA’s constitutional arguments against the Judicial Council’s conduct. It may yet restore the Honorable Pauline Newman to her full judicial duties—as it should.

NCLA released the following statements:

“Nothing has changed since last February – I continue to be fully able to perform the duties of the office which was entrusted to me. This has been confirmed by two physicians and numerous individuals who have interacted with me over the last twelve months. This battle is not just for me, but for the very concept of judicial independence and protection of our constitutional structure. I will continue to fight it.”
— Hon. Pauline Newman, Active Judge, U.S. Court of Appeals for the Federal Circuit

“While we are disappointed in the Committee’s decision, it is worth noting that the Committee confirmed, contrary to the Judicial Council’s district court briefs, that the Judicial Council was acting in an administrative rather than judicial capacity. This fact indicates its actions are subject to the same review as actions of any other agency. Judge Newman intends to fully press for such review in properly constituted Article III courts.”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA

“Today is a dark day for the federal judiciary. The Committee on Judicial Conduct & Disability fell victim to a false narrative about the events that have transpired over the past year. Numerous federal judges have privately encouraged NCLA’s defense of Judge Newman. Others have publicly questioned the Federal Circuit’s actions. Like me, they fear for a nation in which judicial independence is lost by the judiciary’s own misguided hand.”
— Mark Chenoweth, President and Chief Legal Officer, NCLA

For more information visit the case page here or watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (October 26, 2023) – Late yesterday, the New Civil Liberties Alliance filed a brief in Newman v. Moore, et al., urging the U.S. District Court for the District of Columbia to deny Defendants’ motion to dismiss the Hon. Pauline Newman’s complaint and to grant a preliminary injunction halting her ongoing suspension. Last month, the Judicial Council of the Federal Circuit unlawfully suspended the veteran circuit judge from hearing new cases for at least a year, after ordering her indefinite suspension several months earlier without due process.

Judge Newman’s indefinite removal from the bench is unprecedented in American judicial history. Throughout the process, the Judicial Council has changed the rationale for its actions and even altered the allegations leveled against her, all to accomplish a predetermined outcome. In March 2023, the Judicial Council indefinitely suspended Judge Newman from hearing new cases before any formal investigation began. In violation of basic and fundamental due process requirements, Chief Judge Moore and the Judicial Council refused to transfer the investigation to another circuit court of appeals, despite the fact that all members of the Judicial Council are fact witnesses to the events at the heart of the dispute. Three former Chief Judges (two from the Federal Circuit itself, and one from the Fifth Circuit) have publicly challenged the Judicial Council’s behavior.

The Judicial Council’s factually baseless and procedurally defective suspension of Judge Newman deprives her of the constitutional right and obligation to continue in office, and it violates the procedural due process protections built into the very statute and rules the Judicial Council is enforcing. The September order exceeds sanctions imposed on judges who committed serious misconduct and improprieties. The Council’s actions, which appear designed to accomplish a preordained result, have left Judge Newman with no remaining cases to hear, irreparably harming her and depriving the country of her decades of valuable judicial experience and insight.

Despite the lack of factual predicate for the mental examination ordered by the Judicial Council, Judge Newman voluntarily submitted to two separate examinations by two expert medical professionals. She was properly tested. She passed twice and has since shown her unquestionable vigor in speeches at public events honoring her myriad achievements. Oddly, the Judicial Council dismissed the validity of both medical examination reports, substantively mischaracterizing the examinations those doctors conducted and substituting their own Google search for the considered opinions of two board-certified medical experts. The District Court, which has jurisdiction over the administrative actions taken by the Federal Circuit’s Judicial Council, should judge far more wisely, restoring Judge Newman to her full judicial duties, pending final resolution of her administrative appeals.

NCLA released the following statements:

“Judge Newman’s lawsuit is about more than restoring her to the bench. It is about the very independence of the federal judiciary and the ability of each federal judge to fulfill the office constitutionally entrusted to her. The District Court should reject Defendants’ claims of absolute and unfettered power to effectively remove judges from office—a power that belongs to Congress alone.”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA

“Judge Newman has a clear right to review in the District Court. We look forward to continuing to work in this court to ensure a fair and constitutional process for Judge Newman and other Article III judges—and to see Judge Newman returned to hearing cases as soon as possible.”
— Andrew Morris, Senior Litigation Counsel, NCLA

For more information visit the case page here or watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (September 20, 2023) – In a damaging blow to judicial independence, the Judicial Council of the Federal Circuit today ordered the suspension of active circuit judge, the Hon. Pauline Newman, from hearing new cases for at least a year. This suspension comes on top of the six-plus months the Council has already unlawfully suspended her from hearing cases while the investigation was still ongoing, which violates the very Judicial Conduct and Disability Act that the Judicial Council claims to have a solemn obligation to follow.

The New Civil Liberties Alliance, which is honored to represent Judge Newman, is challenging her unlawful pre-investigatory suspension in the U.S. District Court for the District of Columbia. NCLA will also petition the Committee on Judicial Conduct & Disability to review today’s flawed Judicial Council order. The Disability Act, were it being adhered to, calls for keeping Judge Newman hearing cases during the investigation and any appeals.

After Chief Judge Kimberly Moore identified a complaint this past March alleging that Judge Newman was mentally incompetent to fulfill her judicial duties, the Judicial Council indefinitely removed her from hearing new cases before any formal investigation began—an act unprecedented in American judicial history. Only after removing Judge Newman from the bench did the Chief Judge then appoint a Special Committee to investigate. Unlike every other substantive investigation of a federal circuit judge in recent decades, Chief Judge Moore refused to transfer the investigation to another circuit court of appeals—instead leading the investigation herself.

The Special Committee ordered Judge Newman to submit to forced neurological testing by a medical professional whom she was denied any role in selecting—another order unprecedented in American judicial history and inconsistent with the Disability Act. Forcing a federal judge to submit to a forced medical examination to remain on the bench is not consistent with the Constitution, which requires impeachment for removal from judicial office.

Despite the lack of factual predicate for the ordered mental exam, Judge Newman voluntarily submitted to mental health exams by two expert medical professionals. She was properly tested. She passed twice. This fact alone should have been enough to end the investigation against Judge Newman. Her vigor and her robust health are obvious in a video released by NCLA and at an in-person IPWatchdog conference this month, where Judge Newman’s speech received two standing ovations. Oddly, the Judicial Council dismissed the validity of both medical examination reports, substantively mischaracterizing the examinations those experts conducted and substituting their own Google search for the considered opinions of two board-certified medical experts.

The Council upheld a Special Committee’s recommendation, which incorrectly found Judge Newman guilty of misconduct. After three weeks of needless delay, the Judicial Council also belatedly disclosed Judge Newman’s August 31 response opposing the Special Committee’s recommendation. That 100-plus page document explains the problems with the process and recommendation against her in great detail. The Judicial Council’s decision to muzzle Judge Newman’s ability to reply to the Special Committee’s recommendation and then to delay disclosing her opposition to the Special Committee’s recommendation smacks of bias. Releasing it at the same time as the Judicial Council’s Order appears to be a self-interested effort to bury her valid responses. The delay is the latest in a long series of deeply regrettable due process abuses infecting this matter.

The Judicial Council’s factually baseless order not only deprives Judge Newman of the constitutional right and obligation to continue in office, but it violates the procedural due process protections built into the statute and rules the Judicial Council is enforcing. The Judicial Council’s sanction against Judge Newman violates her right to exercise judicial power under Article III of the Constitution. It exceeds sanctions imposed on judges who committed serious misconduct, and it oversteps the Judicial Council’s statutory authority.

The Judicial Council’s Order also moves the goalposts, basing its conclusions on various new grounds to which Judge Newman has never had an opportunity to reply. It is impossible to defend an action where the charges against the defendant keep changing. This is why the judges cannot act simultaneously as judges, prosecutors, and witnesses. For this additional reason, today’s decision resulted from a completely unacceptable process featuring an astounding lack of basic due process of law.

Earlier procedural failures have led to calls for an immediate transfer of the matter. Two former Federal Circuit Chief Judges, the Hon. Paul R. Michel and the Hon. Randall R. Rader, have independently spoken out against the due process deficits in this case, condemning the disgraceful treatment of Judge Newman throughout this mishandled investigation. The Hon. Edith Jones, an active judge and a former Chief Judge of the U.S. Court of Appeals for the Fifth Circuit, also openly criticized the process.

Throughout these proceedings, Judge Newman offered cooperatively to resolve the question of her mental fitness.  She has offered numerous compromises to the Committee, but in turn she was met with demands for blind obedience to the Special Committee’s unreasonable demands. This unacceptable process cannot stand.

NCLA released the following statements:

“Throughout this process, the Special Committee and the Judicial Council have engaged in what can fairly be described as ‘sharp practices.’ The Council faults Judge Newman and NCLA for attempting ‘to discredit this entire process by trying their case in the press.’ But it is not Judge Newman who brought discredit upon this process and the Federal Circuit. It is the lack of due process and the resort to unprecedented actions inconsistent with the governing statute and the Constitution. For her part, Judge Newman will not stop her fight for due process of law and respect for constitutional norms.”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA

“Today is a dark day in the history of the federal judiciary. Judge Pauline Newman is a legal luminary and a living legend. She deserves far better than what her peers have done today. The Federal Circuit Judicial Council should never have tolerated a process this lacking in due process and one so inconsistent with the requirements of the Disability Act. NCLA trusts that wiser heads will prevail at the Committee on Judicial Conduct & Disability.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here or watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (September 7, 2023) – The New Civil Liberties Alliance has released a forensic psychiatrist’s report detailing the clinical evaluation of the Hon. Pauline Newman, whose fellow judges are unlawfully attempting to oust her from a constitutionally appointed lifetime position as a Federal Circuit Court of Appeals judge. The results of the evaluation clearly demonstrate Judge Newman’s fitness to remain in active judicial service. A new video released by NCLA exposes the unjust treatment of Judge Newman and showcases her vibrant mind, vigor, and dignity for all to see.

Dr. Regina M. Carney, a full-time forensic psychiatrist at Miami Veteran’s Administration Medical Center, and an Assistant Professor in the Department of Psychiatry and Behavioral Sciences at the University of Miami’s Leonard M. Miller School of Medicine, performed a three-hour medical evaluation of Judge Newman on August 25. Prior to her examination, Dr. Carney reviewed Judge Newman’s medical records and various allegations leveled against her. In her subsequent report, Dr. Carney describes Judge Newman as “a fluent, engaging, strong-willed, highly accomplished and unusually cognitively intact 96-year-old woman…” Dr. Carney opined that “Judge Newman demonstrated no substantial emotional, medical, or psychiatric disability that would interfere with continuation of her longstanding duties as a Judge in the U.S. Court of Appeals.”

This is the second medical evaluation Judge Newman has undergone since early March, when the Judicial Council of the Federal Circuit, led by Chief Judge Kimberly Moore, indefinitely removed her from hearing new cases before any formal investigation even began. The Chief Judge launched an investigation alleging that Judge Newman was mentally incompetent to fulfill her judicial duties, and a Special Committee chaired by the Chief Judge ordered Judge Newman to submit to neurological testing despite lacking a factual basis for such an order.

Judge Newman voluntarily submitted to independent mental health exams by two experts: George Washington University neurologist Dr. Ted Rothstein and the aforementioned Dr. Carney. She was tested. She passed. Twice.

In his June 21 report after cognitively evaluating Judge Newman, Dr. Rothstein observed, “Her speech is normal and her ability to provide her vocational and medical history is precise and eloquent.” He concluded
that Judge Newman has “cognitive function sufficient to continue participation in her court’s proceedings.”

The Special Committee’s July 31 Report, relying on little more than its own Google search, dismissed the validity of Dr. Rothstein’s report. Dr. Carney’s evaluation only reinforces the need for the Judicial Council’s investigation to be brought to a close and for Judge Newman to resume her service on the Federal Circuit at once.

NCLA released the following statements:

“Two independent medical providers have now evaluated Judge Newman and found her to competent to serve as a federal judge. People who have read Judge Newman’s opinions have reached the same conclusion. These exams were not necessary in the first place, but they clearly show that the investigation against Judge Newman is baseless and that it is time to bring it to a close. Enough is enough.”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA

“The video NCLA is releasing today will show the whole country that Judge Newman is in fine fettle. She never should have been removed from the federal bench by this unlawful process to begin with. None of the Special Committee’s shifting rationales for keeping her off the bench have merit, and it certainly had no statutory or other authority to remove her before completing any investigation. It is high time for Judge Newman to get back to doing what she does best—hearing and deciding cases on the U.S. Court of Appeals for the Federal Circuit.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here or watch the case video here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (August 4, 2023) – Today, without warning, a Special Committee of the Federal Circuit published documents from their investigation attacking highly-respected veteran circuit judge, the Hon. Pauline Newman. This surprise document drop included a 319-page Special Committee report that falsely accuses her of misconduct and disability. The report recommends that Judge Newman remain barred from hearing new cases, even though the very last page of the report concedes that she passed the cognitive assessment she received.

Chief Judge Kimberly Moore and her colleagues released their report prematurely, undermining Judge Newman’s statutory right to respond within 21 days, and preventing the public from being fully briefed. As Judge Newman’s counsel, NCLA is disappointed with this latest inappropriate move in a long series of due process shortcuts the Special Committee has taken to force Judge Newman out of her constitutional, lifetime-appointed judicial role.

Judge Newman vigorously disputes the findings and legal conclusions of the Special Committee report, as will become evident when NCLA files her official response to it. The Judicial Council alleged that 96-year-old Judge Newman was mentally incompetent to fulfill her judicial duties, demanding that she submit to neurological testing. Judge Newman was properly tested. She passed. And yet the Special Committee, though none of its members has medical training, still saw fit to question the report’s accuracy and legitimacy.

The original sin of this proceeding was removing Judge Newman from hearing cases for an indefinite period before the investigation even began. The 1980 Judicial Conduct and Disability Act does not authorize any such indefinite or pre-investigatory suspension. The procedural shortcomings continued with the Special Committee flouting federal law which requires judges to recuse themselves from proceedings when they have personal knowledge of the facts in dispute. Moreover, similar past investigations of circuit judges have nearly always been transferred to another circuit, but Chief Judge Moore has insisted on keeping this one for herself.

Indeed, because of these ongoing procedural irregularities, two of Moore’s predecessor chief judges on the Court, retired Chief Judges Paul R. Michel and Randall R. Rader have spoken out separately in opposition to the blatant due process deficits in this case, decrying the disgraceful treatment of Judge Newman and the Court’s damaged reputation from this mishandled investigation.

Retired Chief Judge Michel called out the glaring due process problems with the Special Committee:

“[T]he Chief Judge and the Special Committee are continuing to act as accuser, investigator,
prosecutor, and judge. That would not be acceptable in any other circumstance, and I’m hard-pressed to see how it can be acceptable here. It cuts against the very foundation of due process, as well as raising thorny constitutional concerns. An unfair process risks damaging the legacy of all the current judges agreeing to what appears to be a conflicted process.”

Retired Chief Judge Rader said Judge Newman’s colleagues on the Court owe their esteemed fellow judge an apology. He also personally attested to her current competence:

“I called [Judge Newman] directly … [W]ithin five minutes, I could easily and confidently assess that Judge Newman was as mentally sharp and capable as she had been for more than 40 years that I have known her well. Indeed, since that conversation, we have spoken at least once a week at all times of the day and evening. In all of those conversations, including a couple of in person meetings, I have not detected the slightest slippage in her mental acuity. Judge Newman’s current colleagues must have the same opportunities to assess for themselves her abilities. Thus, this prolonged proceeding, especially in the face of her entirely successful cognitive medical examination, becomes even more puzzling.”

NCLA released the following statements:

“The Special Committee’s surprise actions undermine public confidence in the Judiciary, and prove, better than any argument that Judge Newman could make, that a transfer of this matter is—and always was—necessary.”
— Greg Dolin, M.D., Senior Litigation Counsel, NCLA

“Judge Newman has not yet had an opportunity to respond to it, but the report itself highlights the lack of procedural fairness. The investigation began by removing her from hearing cases, and the Special Committee is acting as witness, prosecutor, and judge at the same time. Basic fairness requires transferring this matter to a neutral circuit.”
— Andrew Morris, Senior Litigation Counsel, NCLA

“It is not surprising that the same judges who falsely accused Judge Newman of having a heart attack are unwilling to accept the medical opinion of Newman’s physician that she passed the cognitive assessment he gave her. This tribunal long ago sacrificed any semblance of due process in its concerted effort to keep their famously dissenting colleague off the bench no matter what the medical evidence shows about her competence. This flawed process has indelibly stained the Federal Circuit. If it succeeds, it will jeopardize the independence of all federal judges.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (June 28, 2023) — Chief Judge Kimberly Moore and the Judicial Council of the U.S. Court of Appeals for the Federal Circuit have indefinitely suspended highly-respected veteran Judge Pauline Newman from hearing new cases—and they did so before investigating her. The 1980 Judicial Conduct and Disability Act does not authorize such indefinite or pre-investigatory suspensions. Another federal statute requires Federal Circuit panels to be comprised of a fair draw from all the Court’s active judges. Hence, suspending Judge Newman also infringes on the right of every Federal Circuit plaintiff and defendant to have their cases heard by a fair draw from all the Court’s active judges. Moreover, Judge Newman herself has an interest in fulfilling the duties of her judicial office, which cannot be taken away without due process of law. Judges singling out other federal judges for suspension is not due process and violates Congress’ sole constitutional authority to impeach federal judges.

To vindicate these constitutional and statutory principles, the New Civil Liberties Alliance has filed an amended Complaint and a Motion for a Preliminary Injunction on Judge Newman’s behalf, asking the U.S. District Court for the District of Columbia to order the Federal Circuit’s Judicial Council to restore Judge Newman’s full participation in the work of her court immediately. A presidentially-appointed, Senate-confirmed judge on the Federal Circuit since 1984, Judge Newman’s decades of esteemed work have revolutionized patent law. She is in sound physical and mental health, as confirmed by recent neurological examination. Despite Article III of the Constitution entitling her to hold office “during good behaviour,” the Judicial Council of the Federal Circuit suspended Judge Newman in March pending the results of an “investigation into potential disability/misconduct.”

Another major problem with the Judicial Council’s investigation is that the other Federal Circuit judges are acting as complainants, witnesses, and adjudicators simultaneously. To avoid such conflicts of interest, the standard practice would be to ask the Chief Justice of the United States to transfer the investigation to another circuit for impartial resolution. Chief Judge Moore and the Judicial Council have thus far refused to seek transfer. So, NCLA urges the U.S. District Court for the District of Columbia to not only enjoin Judge Newman’s unlawful and unconstitutional suspension, but also to enjoin further investigation by the conflicted Federal Circuit. If the investigation is to continue, due process of law requires neutral judges from another circuit to do it.

Since suspending Judge Newman in March, Defendants have changed their rationale for ordering it. The latest Order from the Judicial Council indicates the Council may continue her suspension even without finding misconduct on her part. This latest Order, like previous ones, was issued without any notice to or participation by Judge Newman, even though she remains a full-fledged member of the Judicial Council. Whatever the rationale, the Judicial Council may not punish Judge Newman before conducting its investigation, it cannot indefinitely suspend her from hearing future cases, and it cannot persist in investigating her despite its own conflict of interest. The myriad statutory and constitutional problems infecting this investigation provide ample reason for the district court to grant a preliminary injunction in this case.

NCLA released the following statements:

“The Federal Circuit’s conduct toward Judge Newman has been and continues to be inexplicable. Instead of transferring the matter to another circuit for an impartial resolution, Defendants have repeatedly undertaken actions that violate constitutional and statutory law. NCLA is saddened that this matter has become public and necessitated a resort to litigation, but we are resolved to defend Judge Newman’s rights, the public’s rights, and the judicial independence envisioned by the Constitution’s Framers.”
— Greg Dolin, Senior Litigation Counsel, NCLA 

“As public evidence has mounted that Judge Pauline Newman remains fully capable of performing her duties as a judge of the U.S. Court of Appeals for the Federal Circuit, the Judicial Council’s rationale for suspending her has shifted from alleging mental and physical incapacity to now focusing on her alleged lack of cooperation with the unlawful process the Council has employed to keep her off the bench. NCLA is filing this Motion to ensure that Judge Newman is restored to the bench immediately—where she belongs—and that any subsequent investigation taking place adheres to statutory and constitutional strictures.”
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here.

ABOUT NCLA

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document

Washington, DC (April 21, 2023) – The New Civil Liberties Alliance, a nonpartisan, nonprofit civil liberties group, has written to Chief Judge Kimberly A. Moore of the U.S. Court of Appeals for the Federal Circuit expressing concern with her efforts to remove fellow U.S. Circuit Judge Pauline Newman. Chief Judge Moore claims that Judge Newman “is unable to discharge all duties of the office by reason of mental or physical disability.” Moore has appointed a three-judge special committee—including herself—to investigate the matter.  

Without citing any legal authority and prior to the conclusion of any investigation, Chief Judge Moore removed Judge Newman from hearing cases for an indefinite period. She also impeded Judge Newman’s access to chambers phone and computer, and unilaterally decided that the judicial assistant working for Judge Newman “is no longer an employee of the Newman chambers.”  

Chief Judge Moore’s unlawful action to bar Judge Newman from carrying out the duties of her appointed office poses significant constitutional difficulties because it impinges on the Constitution’s guarantee that federal judges hold and exercise the functions of their office “during good behaviour.” Her action also violates due process of law and raises serious concerns about Chief Judge Moore’s ability to conduct this investigation impartially.  

To preserve the public’s confidence in the federal judiciary’s ability to fairly resolve complaints against judicial officers, and to protect Judge Newman’s due process rights, NCLA is requesting that this matter be transferred to another Circuit’s judicial council for resolution, a step often taken in such cases. Meanwhile, NCLA has asked that Judge Newman’s participation as a judge of the Federal Circuit be immediately and fully restored. 

Judge Newman has served with distinction on the United States Court of Appeals for the Federal Circuit since her appointment to that Court by President Ronald Reagan in 1984. She is renowned for her contributions to patent law and her views are often subsequently adopted by the Supreme Court as the law of the land. The power of her persuasive majority opinions and forceful dissents has been noted as recently as last month. Judge Newman vigorously disputes the unfounded allegations regarding her ability to continue performing her judicial duties. 

NCLA released the following statements: 

“The Constitution vested the power to remove judges in the United States Senate, and not in the Chief Judge of the Federal Circuit. Nothing will undermine the public’s confidence in the judiciary faster than the spectacle of judges themselves overstepping legal bounds and violating the basic norms of due process. Chief Judge Moore should immediately restore Circuit Judge Newman’s ability to exercise the authority of the office to which she was confirmed and request that all future proceedings in this matter be handled by another court.” 
— Greg Dolin, Senior Litigation Counsel, NCLA  

“NCLA is honored to represent a member of the federal judiciary, especially one as distinguished as Judge Pauline Newman. Whatever ulterior motive is driving efforts to remove Judge Newman, I don’t think attempts to portray her as having diminished capacity will work. I hope Chief Judge Moore thinks better of this misguided effort and either withdraws the complaint or—at the very least—transfers it to a judicial council where an impartial review of the facts can occur. Under the circumstances, there is no good reason not to take that wise step.”  
— Mark Chenoweth, President and General Counsel, NCLA

For more information visit the case page here. 

ABOUT NCLA 

NCLA is a nonpartisan, nonprofit civil rights group founded by prominent legal scholar Philip Hamburger to protect constitutional freedoms from violations by the Administrative State. NCLA’s public-interest litigation and other pro bono advocacy strive to tame the unlawful power of state and federal agencies and to foster a new civil liberties movement that will help restore Americans’ fundamental rights.

Download the full document