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CAFC Judge Newman Files Suit to Contest Colleagues' Fitness Investigation

U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman filed suit in the U.S. District Court for the District of Columbia in a bid to stop CAFC Judge Kimberly Moore's investigation of Newman's fitness to continue serving on the court. Retaining the New Civil Liberties Alliance as counsel, Newman argued that the fitness proceedings constitute a violation of the separation of powers as spelled out in the U.S. Constitution (The Hon. Pauline Newman v. The Hon. Kimberly A. Moore, D.D.C. # 23-01334).

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The Constitution solely rests the power to impeach a member of the judiciary with Congress, barring Moore's efforts to effectively remove Newman at the court level, the complaint said. The judge claimed the Federal Circuit judges' efforts to remove the 95-year old Newman "constitute an attempt to remove" her from office by refusing to assign her any new cases, removing her judicial staff and refusing to hire replacement staff, interfering in the judge's ability to administer her own chambers and ordering the judge to undergo an "involuntary mental health examination without a sufficient basis or legal authority for doing so."

While acknowledging that under the Judicial Disability Act of 1980 a judicial council can temporarily halt the assignment of additional cases to the judge under review, Newman said that this can only be done at the conclusion of a special committee's investigation. "Neither the Act nor the Conduct Rules authorize either a Chief Judge acting alone, nor a judicial council of any circuit, to issue any orders or directives which have an effect of precluding an active Article III judge from being assigned cases in regular order while an investigation is still underway," the complaint said.

Newman further alleged a host of violations against Moore and Judges Sharon Prost and Richard Taranto, the other two judges composing the special committee investigating Newman's fitness. Newman accused her colleagues of violating her 5th Amendment due process rights given that Moore, Prost and Taranto are presiding over a case in which they are "actual or potential witnesses."

Moore initially brought the complaint against Newman in March after unsuccessfully trying to sway the judge to retire (see 2304140022). The committee noted that in the summer of 2021, Newman agreed to be taken off motion panels due to a redacted health issue. Among other reasons Moore listed as bringing on the investigation was an alleged heart attack suffered by Newman. In her complaint, the judge said that not only did this not happen, it is irrelevant to her ability to carry out judicial functions.

Two months after the investigation was launched, Moore issued two orders to which Newman took exception. The first, dubbed a "gag order" by Newman, threatened the judge and her counsel with sanctions should they publicize the investigation. The second denied a request that the investigation be transferred to another court without addressing manifest due process concerns, the complaint said.

The committee also gave Newman three days to submit to a neurological evaluation. Newman said that while she does not object to undergoing an evaluation, she does take issue with not being able to select or participate in the selection of the examining official, and to having no say in the scope of the exam. "The special committee’s refusal to even engage in the process of attempting to define the scope of the examination and selection of a qualified professional, as well as its demand to submit to the examination on an expedited basis, are contrary to the requirements of the Conduct Rules and the guarantees of due process," the complaint said.

The complaint also laid out a litany of challenges to the Judicial Disability Act, claiming that many of its portions are "unconstitutionally vague" and in violation of the due process clause. Among other things, the judge said the act cuts against the 5th Amendment since it "lacks minimal enforcement guidelines identifying when an Article III judge may be subject to a disability investigation, and, accordingly, when an Article III judge may be disciplined for objecting in good faith to undergoing a compelled medical or psychiatric examination."