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US Judicial Conference Committee Upholds Newman's 1-Year Ban From New CAFC Cases

The U.S. Judicial Conference's Committee on Judicial Conduct and Disability in a Feb. 7 decision denied U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman's request for a review of the appellate court's decision to suspend her from hearing cases for a year, sustaining the sanction.

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The committee held that the Federal Circuit's Judicial Council didn't commit an abuse of discretion by refusing to transfer the investigation of Newman at this stage, Newman hasn't shown "good cause for her refusal to cooperate" and the one-year suspension doesn't exceed the Judicial Council's authority. While this spells the end for Newman's appeal to the Judicial Conference, her case before the U.S. District Court for the District of Columbia proceeds.

The CAFC Judicial Council imposed the one-year ban on new cases for Newman in September 2023 after finding that the 96-year-old judge obstructed the investigation into her fitness to continue serving on the bench (see 2309200024). As part of the investigation, Newman was tasked with subjecting herself to a medical examination, but she refused to comply. The council found that the obstruction, among other things, could stand as a basis for the suspension.

Newman appealed to the Judicial Conference committee, arguing that the council abused its discretion by refusing to transfer the matter to another circuit since the judges on the council were "required to recuse." The committee found this claim to be "without merit" since the ordinary standard of recusal "does not apply to judicial conduct and disability proceedings."

Disqualification in judicial conduct proceedings "is highly discretionary and only requires disqualification where the judge 'concludes that the circumstances warrant disqualification,'" the committee said. Personal knowledge of the disputed facts doesn't warrant disqualification, the ruling said. The question of whether Newman impeded the investigation "did not require members of the Judicial Council to serve as witnesses," the committee noted.

Transfer is also an option in judicial disability cases in "exceptional circumstances." This rule allows, but doesn't require, a judicial council to request the transfer. Here, it is purely up to the Judicial Council to decide whether to transfer the case, the committee ruled.

Newman also claimed that she had good cause in refusing to cooperate with the investigation due to the Judicial Council's "repeated failures" to follow the procedures for judicial fitness investigations and the council's "reputation of a 'cooperative' process." Newman claimed she was denied due process by not having a chance to "test the evidence." The committee rejected these claims, finding that the rules "do not give a subject judge the right to independently interview witnesses."

All a subject judge may do is compel the attendance of witnesses, cross examine any witnesses, suggest additional witnesses, attend a hearing, receive the names of witnesses who will testify and respond to the Special Committee's report. "Here, Judge Newman was afforded all the process she was due under the Rules," the ruling said.

The committee likewise said the investigating judges had a "reasonable basis" to request that Newman undergo a medical examination due to detailed accounts of "memory loss, confusion, lack of comprehension, paranoia, anger, hostility, severe agitation, and an inability to perform tasks that Judge Newman previously could perform with ease."

Newman also challenged the length of her suspension, claiming it exceeded all other suspensions issued under the Judicial Conduct and Disability Act, was effectively indefinite given the council's renewal authority and unlawfully prevents her from participating in the Federal Circuit's en banc sessions. The committee rejected these claims, finding historical analogues under the Disability Act and that Newman has the "power to trigger reconsideration or modification if she decides to cooeprate." As for en banc participation, the committee echoed the council in finding that the authority to address situations of disability outweigh the requirement that all judges participate in en banc proceedings.