United States Court of Appeals for the Federal
CircuitUNDER SEAL (NON-PUBLIC ORDER)__________________________IN RE COMPLAINT NO. 23-90015__________________________

Order of the Judicial Council of the Federal Circuit
September 20, 2023

TABLE OF CONTENTS
ORDER
Summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I.

Procedural Background and Course of the Investigation . . 10

II.

The Report and Recommendation Sets Out Overwhelming
Evidence that Provided a Reasonable Basis for theCommittee’s May 16 Order. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .18
A. The Evidence of Troubling Behavior in Interactions with
Staff Provided a Sufficient and Independent Basis for the
May 16 Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
1. Evidence of Memory Loss, Confusion, and Lack ofComprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .19
2. Staff Report Evidence of Agitation and Unwarranted
Paranoia . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
3. Concerns Raised by Events Surrounding Chambers Staff . . .25
4. Dysfunctional Behavior Suggests Disability and Creates
Workplace Abuse Concerns . . . . . . . . . . . . . . . . . . . . . . . . . . . 29
5. The Response Alleges that She Can “Run Her Chambers as
She Sees Fit” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .34
6. The Response Incorrectly Claims Lack of an Opportunity toCounter the Employee Allegations . . . . . . . . . . . . . . . . . . . . . 35
B. The Evidence of Productivity Deficiencies, Even With a
Reduced Workload, Supports the Committee’s Order . . . 37

III.

The Refusal to Comply with the May 16 Order Was Not
Excused by Good Cause . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
A. The Request for Transfer Does Not Provide Good Cause
for Her Refusal to Comply with the May 16 Order. . . . . . .40

B. The Medical Evidence is Not Good Cause for Her Refusal
to Comply with the Committee’s May 16 Order . . . . . . . . .50
1. Dr. Rothstein’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
2. Dr. Carney’s Report . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
3. Inadequacy for the Disability at Issue . . . . . . . . . . . . . . . . . . 54
C. The Criticisms of Earlier Orders and Actions Do Not
Undermine the Duty to Comply with the May 16 Order . .56
1. The Criticisms of the March 24 and April 7 Orders Do Not
Undermine the May 16 Order . . . . . . . . . . . . . . . . . . . . . . . . . 57
2. The Criticisms of Other Actions by the Chief Judge or Special
Committee Leading to and in the Investigation Do Not
Undermine the Duty to Comply with the May 16 Order . . . .62
IV.

The Refusal to Comply with the May 16 Order Constituted
Serious Misconduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 68

V.

The Renewable One-Year Suspension from New Cases is an
Appropriate Sanction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

Unanimous Judicial Council Order . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71

United States Court of Appeals
for the Federal Circuit
UNDER SEAL (NON PUBLIC ORDER)__________________________IN RE COMPLAINT NO. 23-90015__________________________
Before the Judicial Council of the Federal Circuit
PER CURIAM.
ORDER
Summary
Judge Pauline Newman is 96 years old and has servedwith distinction as an active judge on this Court for 39
years. She has been a highly valued and respected colleague, and her many contributions to the Court, to the patent system, and to the law are recognized by all. Her
colleagues on this Court have recently paid tribute toJudge Newman as “the heroine of the patent system” 1 and“the most beloved colleague on our court.” 2
Unfortunately, earlier this year mounting evidence
raised increasing doubts about whether Judge Newman isstill fit to perform the duties of her office. When such evidence is brought to the attention of the Chief Judge and the
Judicial Council, there is an obligation to investigate thematter under the procedures established by the Judicial
1 The Honorable Kimberly A. Moore, Anniversaries andObservations, 50.4 AIPLA Q. J. 515, 524 (2022).
2 The Honorable Raymond Chen, Tribute to Judge
Pauline Newman, 74 N.Y.U. Ann. Surv. Am. L. 3, 3 (2018).

IN RE COMPLAINT NO 23-90015

Conduct and Disability Act of 1980 (Act)—the self-policing
mechanism Congress created to address (among otherthings) judges who may no longer be fit for judicial office.
Failing to act under the circumstances here would breachour obligations under the Act, display disregard for therights of litigants bringing their cases before this Court, ignore the rights of court staff to be free from increasingly
dysfunctional behavior in the workplace, and undermine
public confidence in the judiciary.
These are very sad proceedings for all involved. Judge
Newman and her counsel have aggressively sought to discredit this entire process by trying their case in the press
while conjuring a narrative of “hostile,” “disrespect[ful],”and “appalling” treatment marked by exercises of “rawpower,” all borne out of “personal animosity” toward Judge
Newman. August 31 Response (Response) 1, 20 n.16, 53.
There is no evidence to support these claims. From the outset, the Chief Judge and other members of the Court approached Judge Newman in a respectful manner toattempt to address a difficult situation with concern for avalued colleague hoping for an informal resolution thatwould have avoided this process. See March 24 Order at 2;
Ex. 1 (emails between Chief Judge Moore and Judge Newman). Multiple colleagues attempted to speak to Judge
Newman about her fitness. She refused to speak to themat all or quickly terminated an attempt to discuss the issue.
The Chief Judge shared a draft complaint with Judge Newman detailing some of the concerns that had been raised
and sought to meet with her. Ex. 1. Judge Newman refused multiple requests for a meeting.
This matter became a formal proceeding because Judge
Newman left no other option. The Court and all of its staff
have been trying to work with and support Judge Newman.
But sadly the circumstances became such that these proceedings could no longer be avoided given our obligations.

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IN RE COMPLAINT NO 23-90015

On March 24, 2023, the Chief Judge, pursuant to the
Act and its implementing rules, identified a Complaint andappointed a Special Committee (Committee) to investigate
information indicating that Judge Newman may no longer
be able to perform the functions of her office. The investigation began promptly. And it soon bore out the essential
allegations in the Complaint regarding Judge Newman’s
cognitive state.
The investigation included more than 20 interviews
with court staff. Those interviews, along with numerous
emails sent by Judge Newman, provided overwhelming evidence that Judge Newman may be experiencing significant mental problems including memory loss, lack ofcomprehension, confusion, and an inability to performbasic tasks that she previously was able to perform withease. The evidence revealed instances in which, when
Judge Newman struggled with basic tasks, she became
frustrated, agitated, belligerent, and hostile towards court
staff. The staff report that the behaviors suggesting that
Judge Newman may have a disability emerged over two
years and have increased in frequency and severity. Withno rational reason—other than frustration over her own
confusion—Judge Newman has threatened to have staff arrested, forcibly removed from the building, and fired. She
accused staff of trickery, deceit, acting as her adversary,
stealing her computer, stealing her files, and depriving herof secretarial support. Staff have described Judge Newman in their interactions with her as “aggressive, angry,
combative, and intimidating”; “bizarre and unnecessarily
hostile”; making “personal accusations”; “agitated, belligerent, and demonstratively angry”; and “ranting, rambling,
and paranoid.” Indeed, interactions with Judge Newman
have become so dysfunctional that the Clerk of the Court
has advised staff to avoid interacting with her in person or,when they must, to bring a co-worker with them. This behavior has taken a significant toll on court staff.

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IN RE COMPLAINT NO 23-90015

These reports are not of isolated incidents based on a
few interactions with only one or two staffers. They comefrom interactions with staff members across a broad range
of departments from the Clerk’s Office to Information Technology (IT) to Human Resources (HR) to the General Counsel’s Office to Judge Newman’s own chambers staff.
During this investigation two of Judge Newman’s fivechambers’ staff members resigned and requested no further contact with her. One twice asked for assistance under the Court’s Employment Dispute Resolution program(EDR), but Judge Newman repeatedly refused to participate in the EDR processes. A third, on advice of counsel,
invoked the Fifth Amendment’s privilege against self-incrimination and refused to answer even the most basic
questions about what goes on in Judge Newman’s chambers, about her responsibilities, or about Judge Newman’s
mental fitness.
The evidence from staff is essentially undisputed. And
the concerns about disability it supports are confirmed byevidence regarding Judge Newman’s workload and productivity. Judge Newman acquiesced in several significant reductions in her workload starting in 2021. Despite thereduced workload, data from the Clerk’s Office shows that,over the last two years or so, she has taken four times aslong to issue half the number of opinions as her colleagues.
The Committee’s investigation culminated in an orderon May 16 directing Judge Newman to undergo two medical examinations, directing her to provide to one of the examiners specified medical records of relevance to assessing
disability, and requesting that she sit for an interview with
the Committee. The two medical examinations were to be
performed by independent medical providers: a 30-45-minute interview with a neurologist, with no required invasive procedures; and a full neuro-psychologicalexamination that would involve approximately six hours ofcognitive testing. As was explained to Judge Newman, this4

IN RE COMPLAINT NO 23-90015

testing was recommended by the Committee’s medical consultant, who has been retained by other courts in similar
circumstances, and who was recommended to the Committee by the Administrative Office of the U.S. Courts.
Despite the large amount of very troubling evidence,
Judge Newman refused to comply with the Committee’s order. The total burden of compliance would be an appointment with a neurologist for no more than 30-45-minutes, afull neuro-psychological examinations lasting about six
hours, and an interview that might explore the evidence
that is so troubling. The burden is small, the basis for concern about disability very substantial, and the job at issueof great public importance. Yet Judge Newman refused.
The issue now before the Council is: Did Judge Newman commit misconduct in refusing to follow the May 16
Order, which ordered medical examinations, the productionof medical records and requested an interview? We answer
in the affirmative. The evidence raising concerns about
disability, just summarized, amply justified issuance of theOrder. The effect of Judge Newman’s refusal to comply
with the Order was to thwart this Council’s ability to determine whether Judge Newman has a disability that renders her unable to perform the duties of her important
office. An unjustified thwarting of a key part of the investigation into disability is recognized under the Act as misconduct. That is what occurred here.
We find no merit in Judge Newman’s arguments forwhy the Council should not draw that conclusion.
First, Judge Newman argues that this matter shouldhave been (and still should be) transferred to another circuit—and that the denial of her transfer request justifies
her refusal to comply with the May 16 Order. Yet Judge
Newman fails to recognize that transfer is appropriate onlyin “exceptional circumstances.” See Rule 26. And here, theCouncil concludes that no circumstances have warranted,

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IN RE COMPLAINT NO 23-90015

or currently warrant, taking this step, which would be extraordinary in the context of this disability proceeding.
In support of transfer, Judge Newman argues that themembers of this Council have personal knowledge of disputed evidentiary facts concerning this proceeding—andthus are biased. Setting aside the Council’s disagreementwith her accusations of improper bias, Judge Newman fails
to appreciate both what is currently at issue and what due
process requires of adjudicators in this context. Since June
1, 2023, the investigation has centered on whether Judge
Newman’s refusal to comply with the May 16 Order constituted misconduct. Although members of the Council inevitably have personal experiences with Judge Newman, theCommittee did not rely on and the Council is not relying on
those experiences. In particular, no judge has been a witness, and the evidence supporting the May 16 Order andits enforcement, which is at issue now, in no way depends
on testimony from fellow judges. And to the extent Judge
Newman maintains that the members of this Council cannot be impartial because they know and have worked withher, the argument sweeps too broadly. As a general matter, due process in this context does not require that adjudicators be totally ignorant concerning backgroundinformation involving parties. And, as it pertains to the
Act specifically, the rules explicitly contemplate that circuit judges will institute, investigate, and ultimately decide disability proceedings concerning one of theircolleagues.
Judge Newman cites no example of transferring a disability proceeding concerning a circuit judge. Instead, her
examples of prior transfers all involve a circuit judge’s discrete alleged acts of past behavior that were charged as
misconduct. This is an important distinction: unlike discrete acts of past misconduct, which could potentially be
pursued from afar without serious detriment, this case has
involved ongoing behavior that was having ongoing effects

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IN RE COMPLAINT NO 23-90015

on the functioning of court staff and the functioning of thiscourt. Ready access to the Committee was therefore vitally
important to ensure that all relevant information was captured and timely reported—all in an environment that ensured affected staff that they were being heard. Indeed, by
the time Judge Newman first requested transfer—on April
21, 2023—the Committee had already conducted morethan a dozen interviews and a deposition, two of her staff
had resigned just days earlier, and many troubling eventswere occurring in real-time. Given these and other considerations discussed in more detail in this order, granting
Judge Newman’s transfer request was never a soundcourse.
Judge Newman has not shown—nor do we see—exceptional circumstances in this case that have warranted, or
currently warrant, transfer. Indeed, relevant considerations—e.g., avoiding delay, preserving superior investigative ability, and the need to timely accommodate court staff
in view of Judge Newman’s ongoing behavior—all weighed
strongly against transfer (and certainly against finding therequisite exceptionality).
Second, Judge Newman claims that the process was
unfair because she was never given an opportunity to contest the information provided by court staff. Judge Newman was given an opportunity to dispute the employee
statements. She did not take it. After being provided copies of all affidavits and the deposition transcript consideredby the Committee, Judge Newman made the strategic
choice not to “delv[e] into the minutia of these affidavits.”
July 5 Br. at 15. Instead, she chose to dismiss them as reflecting “petty grievances” and to argue that “even assuming” the information in them was true, it “doesn’t evenapproach probable cause to believe that Judge Newman ismentally and/or physically disabled.” Id. Indeed, Judge
Newman expressly agreed that there was no need for anevidentiary hearing in this matter. June 15 Letter at 3. In

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IN RE COMPLAINT NO 23-90015

addition, the Committee advised Judge Newman that itsought an interview with her so that she could provide theCommittee information from her perspective, “including
correcting any error of fact” in the Committee’s orders.
May 16 Order at 23–24. She refused that opportunity as
well. She now adds that, even if the staff statements aretrue, there is nothing wrong with how she treated staff andshe can “run her chambers as she sees fit.” Response 48.
Third, Judge Newman has submitted two medical reports from providers of her choosing and claims that thesereports should put to rest any question about her mental
fitness. The reports from Judge Newman’s own selected
providers, however, are not remotely an adequate substitute for the thorough medical examinations ordered by theCommittee based on the recommendations of the Committee’s consultant.
The first consists of a report largely based on administration of a Montreal Cognitive Assessment (MOCA), a
one-page test that takes about 10 minutes to administer.
The report on its face showed inconsistencies between
Judge Newman’s reported score and the stated fact that
she was unable to write (due to a broken wrist), which
would have prevented her from completing three parts ofthe test. Properly scored and converted to the scale for a
full test, it appears that Judge Newman scored below thenormal range on that test. And a declaration provided by
the physician who administered that test does not disputethat assessment.
The second report is based in part on a different 11minute cognitive exam, the Modified Mini-Mental State(3MS), that tests such things as whether Judge Newman
can point to her chin, knows the year, and can name a few
four-legged animals. It does not remotely provide goodcause for Judge Newman refusing to take the full neuropsychological examination (six hours) requested by the8IN RE COMPLAINT NO 23-90015

Committee. The manual for the 3MS test expressly indicates that the test was not designed as a screening tool for
dementia and is not sensitive enough to detect dementia inearly stages. Ex. 2 at 2 (Manual for the Administrationand Scoring of the Modified Mini-Mental State (3MS) Test)
The nature and importance of the job of an active judge,
and the overwhelming evidence of behavior by Judge Newman indicating a cognitive decline, requires the more thorough and sensitive full neuro-psychological examination
ordered by the Committee.
Finally, Judge Newman attacks the May 16 Order bypointing to earlier orders and actions and seeks to paint a
portrait of hostility and bad faith on the part of the Chief
Judge and the Committee. The Council has examined thespecifics of this redirection of focus away from the May 16
Order. We reject the specific allegations and the overall
portrait. The sad, difficult proceedings have been conducted from the outset responsibly and in good faith. The
May 16 Order was proper and sound, and Judge Newman
was required to comply with it.
The Judicial Council unanimously concludes that
Judge Newman’s refusal to comply with the special Committee’s May 16 Order constitutes serious misconduct
which warrants a one-year suspension from cases. We are
acutely aware that this is not a fitting capstone to Judge
Newman’s exemplary and storied career. We all would prefer a different outcome for our friend and colleague. However, we have a solemn obligation under the Act and an
obligation to the litigants before our Court and court staff
to take action—and not to simply look the other way—
when it appears that a judge of this Court is no longer capable of performing the duties of her judicial office. Maintaining public confidence in the judiciary demands no less.
And that duty constrains us in this case. Judge Newman
can obviate the suspension at any time by complying with9

IN RE COMPLAINT NO 23-90015

the Committee’s May 16 Order and permitting the Committee to conclude its investigation into her fitness.
I.

Procedural Background and Course of the Investigation

On March 24, 2023, Chief Judge Moore entered an order pursuant to Rule 5(a) of the Rules for Judicial-Conduct
and Judicial-Disability Proceedings identifying a complaint concerning Judge Newman based on information
providing probable cause to believe that Judge Newman“has engaged in conduct prejudicial to the effective and expeditious administration of the business of the courts’
and/or ‘is unable to discharge all the duties of office by reason of mental or physical disability.” March 24 Order at 1
(quoting 28 U.S.C. § 351(a)). The order referred to her having suffered a heart attack in June 2021, requiring hospitalcare, and a fainting incident in May 2022, and it noted that
Judge Newman’s workload had been reduced through several measures, including no longer having to sit on motions
panels. Id.
As the basis for finding probable cause, the order notedthat judges and court staff had provided information raising concerns (i) that Judge Newman was responsible forextensive delays in resolving cases and appeared unable tocomplete her opinions in a timely fashion (despite her reduced workload), and (ii) that Judge Newman appeared tosuffer from “impairment of cognitive abilities (i.e., attention, focus, confusion and memory).” Id. at 2. The Orderfurther recounted that, after receiving initial information,
the Chief Judge had conducted a limited inquiry pursuant
to Rule 5 that provided substantial additional information
supporting the finding of probable cause. See id. Over four
pages, the Order recounted additional details concerning
Judge Newman’s exceptional delays in resolving cases andinformation from staff describing behavior that raised concerns about Judge Newman’s cognitive state, including10

IN RE COMPLAINT NO 23-90015

allegations of “inappropriate behavior in managing staff.”
See id. at 2-5.
The March 24 Order also recounted that the Chief
Judge had sought to pursue an “informal resolution” with
Judge Newman pursuant to Rule 5. The Chief Judge met
with Judge Newman and explained the concerns that had
been raised about Judge Newman’s delays in resolvingcases and her mental fitness. On March 17, the Chief
Judge provided Judge Newman a copy of the order identifying a complaint that would be issued if an informal resolution could not be reached. Judge Newman refused
multiple requests to discuss the matter or the draft complaint with the Chief Judge. Ex. 1. Left with no otherchoice, the Chief Judge issued the order identifying a complaint on March 24, 2023.
In a separate order entered on March 24, 2023, pursuant to Rule 11, the Chief Judge appointed a Special Committee (Committee) to investigate the complaint andprepare a report and recommendation for the Judicial
Council. 3
The Committee immediately began interviewing court
staff to gather information. In addition, pursuant to Rule13(a) & (c), the Committee retained the services of Dr.
as an expert consultant. Dr.
hasserved as a consultant on judicial disability proceedings inother circuits and has been relied upon in the Colorado

3 Pursuant to Rule 12(a) and 28 U.S.C. §§ 353(a)(1) &363, the Chief Judge was required to make herself a member of the Committee. In addition, she appointed Judges
Prost and Taranto.

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IN RE COMPLAINT NO 23-90015

Supreme Court’s attorney disciplinary body as a medical
expert. 4
On April 7, 5 after the Committee had conducted multiple interviews with court staff and consulted with Dr.
, the Committee issued an order determining that it wasnecessary for the Committee’s investigation to have Judge
Newman undergo a neurological examination and fullneuro-psychological testing to determine whether she suffered from a disability. Dr.
had advised that these
examinations were necessary to ascertain with a reasonable certainty whether a disability existed. As the April 7
Order recounted, Dr.
had identified a qualified neurologist and neuropsychologist to perform the examinations on an expedited basis. The order provided the namesof these specialists. It also noted that “Dr.
is alsoavailable to speak to Judge Newman to answer any questions about the nature of the examination and testing” andprovided Dr.
s telephone number. April 7 Order at
2. The order cautioned that refusal to comply without goodcause shown could result in the investigation being expanded to consider whether failure to cooperate constituted
misconduct under Rule 4(a)(5). Id. at 2-3.
Judge Newman failed to respond to the April 7 Order(or to request an extension of time to respond). On April
13, pursuant to Rule 13(a) at the Committee’s request, thescope of the investigation was expanded to include whether

4 Dr.

s qualifications are set out in the R&R.
See R&R 12, 58–59.
5 On April 6, an order was entered expanding the scopeof the investigation to address an incident in which Judge
Newman had apparently violated the confidentiality provisions of the EDR plan. That incident is discussed, as relevant, below.

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Judge Newman’s failure to cooperate constituted misconduct.
On April 17, the Committee issued an order seeking
certain medical records and an interview with Judge Newman. Dr.
had advised the Committee that Judge
Newman’s medical records related to an alleged cardiac incident and an episode of fainting could shed light on a condition relevant to assessing her cognitive state.
Accordingly, the order required Judge Newman to provide
medical records related to the health incidents described in
the March 24 Order (i.e., what the March 24 Order described as a heart attack and an incident of fainting). April
17 Order at 1. The order also required Judge Newman toprovide records “of any treatment or consultation in thelast two years regarding attention, focus, confusion,
memory loss, fatigue or stamina.” Id. at 2. Finally, theorder requested that Judge Newman sit with the Committee for a videotaped interview. Id. The order proposed that
Judge Newman should provide the medical records by May
5, 2023, and inform the Committee by April 21 whether she
would supply the medical records and sit for an interview
or else “provide good cause why an extension of time isneeded to respond to this [o]rder.” April 17 Order at 2. 6
On April 21, 2023, counsel for Judge Newman filed a
letter brief (April 21 Letter) suggesting that Judge Newman might be willing to cooperate with the Committee’sorders but insisting that the Committee first address a

On April 20, an order was entered expanding thescope of the investigation to include whether three additional incidents constituted misconduct by Judge Newman.
Those incidents are discussed, as relevant, below.
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IN RE COMPLAINT NO 23-90015

request by Judge Newman to transfer this proceeding toanother circuit. April 21 Letter at 3. 7
On May 3, the Committee issued an order responding
to the April 21 Letter. (May 3 Order). The order declined
the transfer request, explaining that, under the Rules, a
discretionary transfer may be considered only in “exceptional circumstances,” id. at 10 (quoting Rule 26). The order responded to Judge Newman’s assertion that judges on
the Committee and the Judicial Council “likely” would become witnesses by pointing out that such a concern waspremature. The result of the medical examinations would
likely determine the course of the investigation and needfor other evidence. Accordingly, the order denied the request without prejudice to renewing it after Judge Newman had complied with the Committee’s orders regarding
medical examinations and medical records. Id. at 12–14. 8
The May 3 Order also renewed the Committee’s orders
regarding medical examinations and medical records. It
detailed additional information establishing a reasonablebasis for those orders and set a deadline of May 10 for
Judge Newman to indicate whether she would comply.

7 The April 21 Letter also raised a matter outside thepurview of the Committee. On March 8, 2023, the Judicial
Council had voted unanimously to preclude the assignmentof new cases to Judge Newman. In her April 21 Letter,
Judge Newman challenged that action as unlawful.
8 The Committee had also referred Judge Newman’s request for a transfer to the Judicial Council, which issued
its own order denying the request without prejudice to renewal after Judge Newman complies with the Committee’sorders regarding medical examinations, medical records
and an interview. May 3 Judicial Council Order.

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IN RE COMPLAINT NO 23-90015

On May 10, 2023, Judge Newman objected to the Committee’s May 3 Order. 9 See May 10 Letter. With respect tothe medical examinations, Judge Newman raised three
concerns. First, she argued that she should be permitted
to choose the professionals who would conduct any examinations. Second, although the Committee had made Dr.
“available to speak to Judge Newman to answer
any questions about the nature of the examination andtesting,” April 7 Order at 2, Judge Newman—without contacting Dr.
—complained that the testing was of“unknown duration and scope.” May 10 Letter at 4. Third,
Judge Newman objected to the lack of any defined limitation on the use of the examination results. Id. As for the
medical records, Judge Newman argued that they were irrelevant. Id. at 3–4. The May 10 Letter also reiterated
Judge Newman’s request that the proceeding be transferred to another circuit. 10
On May 16, 2023, the Committee issued an order responding to Judge Newman’s objections. (May 16 Order).
The order clarified that the medical examinations would be
non-invasive and would consist of an in-person examination by a neurologist lasting 30-45 minutes and a full batteryofneuro-psychologicaltestingwithaneuropsychologist, which would involve an interview andtests involving answering questions and performing tasks“designed to test all major areas of neurocognitive functioning.” May 16 Order at 21–22. That testing could take up
to six hours. The Committee agreed that, if the neurologist
9 Judge Newman also filed a complaint in federal dis-

trict court against the members of the Committee and theentire Judicial Council. See Newman v. Moore, No. 1:23cv-01334-CRC, Dkt. 1 (D.D.C. May 10, 2023).
10 It also repeated her request that the Judicial Council
immediately restore her to the rotation for new case assignments. See supra n.7.

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IN RE COMPLAINT NO 23-90015

believed that any additional tests were required, “suchtesting can be the subject of further discussion between theCommittee and Judge Newman after th[e] initial examination has taken place.” Id. at 22. The Committee explainedthat the results would be used solely to aid the Committee
in its determination of whether Judge Newman has a disability and for the preparation of its report and recommendation to the Judicial Council. Id. at 23.
With respect to medical records, the May 16 Order“more clearly define[d] [the] requests for medical records.”
May 16 Order at 2. In addition to records related to any
treatment concerning “mental acuity, attention, focus, confusion, memory loss, fatigue, or stamina,” the Committee
explained that it sought records “that relate to Judge Newman’s alleged cardiac issues and fainting episode.” Id. at
4. The order explained that the Committee’s consultant,Dr.
, had advised that “medical records related to a
cardiac event and a fainting episode . . . may very well shedlight on the observed changes in Judge Newman’s behavior.” Id. at 5. To address privacy concerns, the Committee
clarified that the medical records could be provided solely
to the neurologist who would evaluate Judge Newman andnot to the Committee. Id. at 6.
The May 16 Order detailed the information providing
a reasonable basis for concern about Judge Newman’s cognitive state. It also explained that the Committee sought
an interview with Judge Newman in part to provide her an
opportunity to provide information, “including correcting
any error of fact” in the Committee’s orders and to “clarify
these matters.” Id. at 23–24.
The Committee concluded the May 16 Order by: (1) requiring (for the third time) that Judge Newman undergo
the required medical examinations; (2) requiring (for thethird time) that she produce the medical records; and (3)16IN RE COMPLAINT NO 23-90015

requesting (for the second time) that she sit for an interview with the Committee. Id. at 25.
On May 25, 2023, Judge Newman refused to comply
with the May 16 Order (May 25 Letter).
On May 26, at the request of the Committee pursuant
to Rule 13(a), the scope of the investigation was expanded
to include whether Judge Newman’s refusal to cooperatewith the May 16 Order constituted misconduct.
On June 1, the Committee determined that Judge
Newman’s refusal to comply with the Committee’s order
impaired the Committee’s ability to make an informed assessment of whether Judge Newman suffers from a disability. See June 1 Order at 2–3. Accordingly, the Committee
narrowed the focus of its investigation to address the question whether Judge Newman’s refusal to cooperate with
the Committee’s order constituted misconduct. Id. at 3–4.
Given that narrowed focus, the Committee determined,
and Judge Newman agreed, that no evidentiary hearing
under Rule 14 would be required because the misconduct
issue could be determined based on the paper record showing Judge Newman’s responses to the Committee’s orderand because there were no percipient fact witnesses with
relevant evidence on that issue. See June 1 Order at 4-5;
June 15 Letter at 3 (“We agree with this assessment.”). 11

11 On June 5, the Judicial Council, treating Judge New-

man’s requests that she be restored to the rotation of newcase assignments, see supra nn.7, 10, as a request for reconsideration of the Council’s March 8 order, issued an order considering de novo whether Judge Newman should besuspended from new case assignments. The Judicial Council explained under its authority under 28 U.S.C. § 332(d),it was suspending Judge Newman from new case17

IN RE COMPLAINT NO 23-90015

The June 1 Order required Judge Newman to submit abrief, limited to the misconduct issue, by July 5, and set
oral argument for July 13. To ensure that Judge Newman
could challenge the reasonable basis for the Committee’sorder, the Committee also provided Judge Newman all of
the witness affidavits and the single deposition transcripton which the Committee had relied. June 1 Order at 5.
Judge Newman thereby had the opportunity to respondto all the material the Committee had in its possession supporting the Committee’s order.
Judge Newman submitted her brief on July 5 alongwith medical evidence, and on July 13 the Committee
heard argument. Judge Newman’s July 5 Brief expressly
requested, pursuant to Rule 23(b)(7) “the public release ofthis letter and any Order or communication issued in response thereto.” July 5 Br. at 1 n.1.
On July 31, 2023, the Committee issued its Report &Recommendation (R&R) and, pursuant to Judge Newman’srequest, publicly released it (with appropriate redactions
to protect the privacy of witnesses).
II. The R&R Sets Out Overwhelming Evidence that
Provided a Reasonable Basis for the Committee’s May 16 Order
The Committee’s investigation uncovered overwhelming evidence of behavior by Judge Newman that provided
a reasonable basis for concluding that she may suffer froma disability that renders her unable to discharge the duties
assignments based on her lengthy delays in issuing opinions. It was “concerned that assigning additional cases toJudge Newman now will only interfere with her ability toclear her current backlog and exacerbate delays in her already long-delayed opinions.” June 5 Judicial Council Order at 4.

18

IN RE COMPLAINT NO 23-90015

of her office. We find that the Committee was justified in
issuing its May 16 Order concerning medical examinations,medical records, and an interview.
A. The Evidence of Troubling Behavior in Interactions with Staff Provided a Sufficient and Independent Basis for the May 16 Order
Affidavits prepared after more than 20 interviews with
Court staff reflect consistent reports of deeply troubling interactions with Judge Newman that suggest significant
mental deterioration including memory loss, confusion,lack of comprehension, paranoia, anger, hostility, and severe agitation. Critically, these reports are not isolated incidents of occasional forgetfulness based on a few
interactions with only one or two staffers. To the contrary,
they come from interactions with staff members across a
broad range of departments from the Clerk’s Office to Information Technology (IT), to Human Resources (HR), to
the General Counsel Office, to Judge Newman’s own chambers staff. And contrary to Judge Newman’s assertions, thereports indicate that the behaviors suggesting that Judge
Newman may have a disability emerged over two years andincreased in frequency and severity. Judge Newman has
never specifically disputed any of the staff accounts, manyof which are independently substantiated by Judge Newman’s own emails attached as exhibits.
1. Evidence of Memory Loss, Confusion, andLack of Comprehension
Judge Newman has been having trouble recalling
events, conversations, and information just days old andhaving trouble comprehending basic information that court
staff communicate to her.
Aff. [1] ¶ 10 (“I have on
multiple occasion[s] seen Judge Newman have trouble recalling events and information.”); id. ¶¶ 11–12 (chambers
staff member describing Judge Newman forgetting recent
conversations and that “Judge Newman did not recall the19IN RE COMPLAINT NO 23-90015

opinion that was issued a day earlier”);
Aff. [2] ¶¶ 7–11 (“We have to walk her through the same
steps over and over and she does not seem to remember
them from day to day.”);Aff. [3] ¶ 4 (reporting that
Judge Newman asked her the same question related tocompensation for a temporary employee four separate
times by email in an approximately 24-hour period); 12
Aff. [4] ¶¶ 37–39 (reporting Judge Newman
could not comprehend the location of her files on her computer after five separate emails explaining the matter toher). At times she seems confused and suspicious and to
be struggling to comprehend or remember what she is being told.
Aff. [4] ¶5 (“[I]t appeared to me
that from one email to the next Judge Newman either did
not read or did not recall the lengthy prior explanations I
provided to her.”).
Her judicial assistant, who spoke to her by phone every
workday and was present in chambers every workday between approximately December 2021 (when he started inthat role) and April 2023 (when he resigned), observed
12 The HR Director tried repeatedly to work with Judge

Newman both to bring back her requested temporary judicial assistant and to post an opening for a new permanent
person.
Aff. [3] ¶ 2; id. ¶ 3 (“I had over 20 email
and phone call exchanges with Judge Newman over thistime trying to get her approval [for temporary and permanent hiring].”). It is clear from the emails that any delay
in Judge Newman’s secretarial support was due to her nonresponsiveness or confusion. Id. ¶ 3 (“It took a long time
for Judge Newman to permit me to move forward on boththe temporary rehire and the permanent requirement . . . I
had to answer the same questions repeatedly and then wait
for answers on those same issues to move forward.”); seealso Ex. 3 (email chain between Judge Newman and HR
Director).

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IN RE COMPLAINT NO 23-90015

Judge Newman’s “memory loss and confusion has increased significantly since [he] started at the court.”
Aff. [1] ¶¶ 1, 4, 5, 10. The IT Help Desk Manager
reported: “Having worked with Judge Newman for years, I
have noticed significant deterioration in her memory, confusion, and ability to understand and execute simple tasks
over the last year.”Aff. [2] ¶ 12. The
Director of IT indicated that he has worked with Judge
Newman for many years and that, while he was amazed at
how quickly and easily she picked things up when she wasin her 80s, he noticed a change: “over the last few years,
I’ve noticed a significant increase in Judge Newman forgetting how to perform basic tasks that used to be routine forher.”
Aff. [5] ¶ 2.
Judge Newman’s judicial assistant reported that, indaily telephone calls with her, he would have to repeat information about the status of cases over and over to her
and that she would forget whether she had voted on casesor had circulated opinions to the panel for vote. See
Aff. [1] ¶¶ 12–13. In one non-case-related incident, Judge
Newman selected pictures of herself from her personal collection for use in a display the library was preparing—yet
when these pictures were shown to her the next month, she
had no idea where they had come from and even stated that
she had never seen them before. Id. ¶ 11 (“She seemed tohave entirely forgotten about our prior recent meetings.”).
In her last three oral argument sittings, she showed up to
court without any of the materials she would typicallybring to court (such as briefs and bench memos). Id. ¶ 23.
In a recent episode, Judge Newman indicated that she
was not required to comply with a Court rule that requires
a judge to circulate votes on opinions within 5 days of receiving a proposed opinion from the judge assigned theopinion. See id. ¶ 22. This rule was unanimously adopted
by the Court (including Judge Newman) in March 2018.
Judge Newman said that she did not have to comply with21

IN RE COMPLAINT NO 23-90015

this rule because Chief Judge Markey told her she could
take 30 days to vote. Id. Chief Judge Markey has beendead for 17 years and has not been a member of the Courtfor 32 years.
In another instance, Judge Newman was unable tocomplete the Court’s mandatory security awareness training, because she was simply “unable to retain the information” from a 10–20-minute video even after watching it
multiple times.
Aff. [5] ¶ 5. The IT Director indicated that Judge Newman repeatedly failed the short multiple-choice test—even though retesting involves
presentation of the same multiple-choice questions eachtime. Id. Ultimately, the IT Director watched the video
with her and reported that he had to “feed her the answers
to the questions in order for her to pass.” Id.
Staff reported evidence of cognitive problems in various
contexts—such as inability to perform simple tasks fromone day to the next, even though she performed them independently for years without difficulty.
Aff. [2] ¶ 10 (“Judge Newman was simply not comprehending the simple process for using the application that she
used to have no problem handling on her own.”);Aff.
[5] ¶ 2;Aff. [1] ¶ 23. “She never used to have a problem with these routine tasks but now seems to repeatedly
forget how to do them.”
Aff. [2] ¶ 9;
Aff. [5] ¶ 4 (“she often cannot recall routine steps or processes and we will need to walk her through the entire process and repeat the steps over and over again. These arethings like remoting into the system that used to be no
problem for Judge Newman until more recently.”).
These events do not involve difficulty adapting to newtechnology, see Response 52–53, but rather inability to perform the same tasks that Judge Newman once performed
independently with ease and the need to be repeatedly reinstructed on how to complete them.
Aff. [5] ¶¶ 2,4

22

IN RE COMPLAINT NO 23-90015(“I’ve noticed a significant increase in Judge Newman forgetting how to perform basic tasks that used to be routine
for her.”);Aff. [2] ¶¶ 7–9, 10 (“She neverused to have a problem with these routine tasks” for “processes [that] have not changed” “but now seems to repeatedly forget how to do them.”).
Another Clerk’s Office staff member reported an incident about 16–22 months ago in which he had to assist
Judge Newman with walking to the courtroom and where
she had to stop and sit outside the robing room to “gather
the energy to stand.”Aff. [6] ¶ 5. He said that“[s]he seemed lost and confused, like she wasn’t fully
there.” Id. He also, like other employees, reported having
to answer the same questions from her over and over in thesame conversation. Id. ¶ 3. He indicated that Judge Newman was “suspicious and confused and struggled to comprehend” how an error in calendaring had occurred. Id. He
explained it to her repeatedly, but she acted “distrustful.”Id.
2. Staff Report Evidence of Agitation and Unwarranted Paranoia
Judge Newman has frequently claimed that her email
and computer were being hacked—also, at times, that herphones were being bugged—and her complaints recently
increased from once or twice a week to almost daily or every
other day. See
Aff. [2] ¶¶ 3, 7–10;
Aff. [1] ¶ 14;
Aff. [5] ¶¶ 2–4, 6;
Aff. [7] ¶ 4.
Staff described her demeanor when making these complaints as “agitated” and “paranoid” and the conversations
as sometimes “bizarre” and “nonsensical.”Aff. [7]¶ 8 (“I would describe Judge Newman’s response as nonsensical because there was no reason to believe any of thatwas happening.”); see
Aff. [2] ¶ 8 (“Sheseems agitated and paranoid, and we frequently have tocalm her down in order to help her with her problem.”); see23

IN RE COMPLAINT NO 23-90015

also
Aff. [8] ¶ 5 (“I found Judge Newman’s behavior
during this whole event to be very bizarre and confusing.”).
In the past, Judge Newman claimed that the culprits
who were hacking and bugging her devices were bloggers
and the media who were out to get her and bring her down.
Aff. [1] ¶ 14. More recently, she claimed that it is
the Court itself hacking, bugging, and deleting information
on her devices.
Aff. [2] ¶ 3;Aff.
[7] ¶¶ 4, 8. At one point, she suggested that the Court wasinterfering with mail at her residence as well.
Aff.
[7] ¶ 8.
In each instance, IT staff scanned her devices andfound no evidence to justify or support Judge Newman’sconcerns.
Aff. [1] ¶ 14 (“ITO would inform me that
there were no concerns or IT issues.”);Aff. [5] ¶ 3(describing that IT would “scan for malware and viruses,[and] there would be nothing that would suggest any malicious interference with her computer”). Her claims about
hackers usually stemmed from her having forgotten where
she saved a file or email, and even after the IT staff locatedthe file or email for her (on her desktop or in one of her
folders), she sometimes would continue to allege that hackers were responsible for hiding the file.
Aff. [5] ¶ 3(“Judge Newman routinely blamed her inability to find afile or email on someone ‘hacking’ her computer . . . I would
usually be able to find the file she was looking for on a desktop folder or other location where she had forgot she saved
it to. Rather than take responsibility for the errors, shewould blame hackers or the computer.”);Aff. [1] ¶14 (“She seemed constantly paranoid about this despite no
actual basis for her to be concerned.”);Aff.
[2] ¶ 8 (stating Judge Newman’s concerns “seem to be easily explained by . . . forgetting what she was doing or not
realizing that the network disconnected her based on inactivity”).

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IN RE COMPLAINT NO 23-90015

3. Concerns Raised by Events Surrounding
Chambers Staff
Recent events surrounding the departure of one ofJudge Newman’s law clerks and her judicial assistant haveraised concerns on multiple fronts, including (1) her inability to remember (or unwillingness to comply with) the
Court’s EDR process, its confidentiality, and outcomes established in that process, (2) her inability to remember orcomprehend repeated explanations given to her about simple staffing and IT matters related to the departure ofthese employees from her chambers, and (3) her hostile andaccusatory interactions with staff based on perceived
wrongs that never actually occurred. To summarize, on
April 19, 2023, two of Judge Newman’s own chambers staff(one law clerk and her judicial assistant) came unsolicited
to the Committee to report troubling behavior by Judge
Newman, requested assistance from the Committee, andresigned from her chambers. Both expressly requested nofurther contact with Judge Newman.
Aff. [9] ¶17; Exs. 4 (email from Chief Judge Moore to Judge Newman and chambers staff regarding), 5 (email
from Chief Judge Moore to Judge Newman and chambers
staff regarding).
The resignation of Judge Newman’s judicial assistant
was prompted, in part, by Judge Newman’s failure to manage a third member of her staff. Judge Newman (1) permitted her career clerk to call her judicial assistant in the
middle of the night, including 3:00 am calls to request personal services (such as a 6:00 am wake-up call for the career clerk), (2) refused her judicial assistant’s requests for
help, (3) refused to participate in the Court’s EDR process,and (4) inappropriately shared confidential details regarding the EDR matter with 95 court staff members and statedthat her judicial assistant’s concerns were, in Judge Newman’s view, not “significant.” April 6 Order at 6;
Aff. [10] ¶¶ 1, 3–4;
Aff. [1] ¶ 35 (“Despite my25

IN RE COMPLAINT NO 23-90015

requests to stop, the clerk continued to contact me outsideof regular working hours after bringing the matter toJudge Newman’s attention.”); Ex. 6 (email from Judge
Newman to 95 staff members). Judge Newman sent thisemail to the court staff distribution list just three hours after being reminded not to use the court distribution foremails containing sensitive matters. Ex. 6. The EDR process and its confidentiality are hallmarks of the judiciary’s
workplace conduct program. EDR Plan for the Federal Circuit § IV.B.1 (“All individuals involved in the processes under this Plan must protect the confidentiality of theallegations of wrongful conduct . . . Information will beshared only to the extent necessary and only with those
whose involvement is necessary to address the situation.”).
Citing several specific examples, her judicial assistant
filed a request for assisted resolution alleging that Judge
Newman “was being abusive and retaliating against me”
and “created a very hostile work environment for me.”Aff. [1] ¶¶27, 31. Through the EDR process, the judicial assistant was given an alternative workstation outside Judge Newman’s chambers as he continued to work
for Judge Newman. Id. ¶¶ 31–32. In response, Judge Newman told other members of her chambers staff that her judicial assistant could no longer be trusted.
Aff.
[9] ¶ 4 (law clerk stating he was informed by Judge Newman to no longer include
on chambers communications “because he could not be trusted”). Judge
Newman refused to participate in the EDR process or torespect the process, including the workstation move. Staff
members reported that on April 18, Judge Newman statedher intention to have her judicial assistant forcibly removed from the building or arrested. See
Aff. [2] ¶ 6 (“Judge Newman then said that she was goingto have‘removed from the court’ or ‘arrested.’”);
Aff. [7] ¶ 19 (“Judge Newman stated that she would
have
removed from the court or arrested.”). Although26

IN RE COMPLAINT NO 23-90015

Judge Newman had been informed that her judicial assistant was temporarily provided an alternative workplace
under the Court’s EDR plan, she refused to accept that accommodation (or could not remember it), and on April 19
she gave the judicial assistant an ultimatum: return tochambers immediately or she would accept his resignation(i.e., he would lose his job).
Aff. [1] ¶ 34 (“I understood Judge Newman as saying that she was going to terminate me immediately unless I dropped my request for analternative work arrangement under the court’s Employment Dispute Resolution Plan . . . .”);
Aff. [10] ¶ 8.
In light of these events, the judicial assistant resigned
from Judge Newman’s chambers, he was placed on the
Clerk’s Office staff, and an email was sent to Judge Newman on April 19, 2023, informing her that the judicial assistant was no longer a member of her chambers and that
he wished for there to be no further communication to him
by any member of the Newman chambers, including theJudge. See Ex. 4;
Aff. [10] ¶ 9.
On the same day, one of Judge Newman’s law clerks
also sought to and did remove himself from Judge Newman’s chambers. He informed Judge Newman that he was
uncomfortable performing personal work for her rather
than court-related work.
Aff. [9] ¶ 6. He indicated that he was uncomfortable in chambers after Judge
Newman told him that her judicial assistant could not be
trusted and should be excluded from all chambers communications. Id. ¶¶ 2–4, 7, 9–16. He stated that he started
teleworking to avoid the “drama, politics, and stress” inchambers. Id. ¶ 7. He requested to be transferred to another chambers. Id. ¶¶ 11, 14. Judge Newman refused tolet him work for another judge, indicating that the optics
would not be good for her and that he had two choices: stayor resign. Id. ¶ 14. The law clerk resigned, and he wastaken on as a law clerk by another judge of the Court; herequested no further contact with Judge Newman, and27

IN RE COMPLAINT NO 23-90015

Judge Newman received an email to that effect on April 19,
2023. Id. ¶ 17; see Ex. 5.
Judge Newman acknowledged receiving the email
about her law clerk, indicated that her clerk’s resignation
was “appropriate,” and stated that the clerk’s separationfrom her chambers should be expeditiously processed. See
Ex. 5. Yet, eight days later, Judge Newman emailed all
judges on the Court indicating that she had not “released”
the law clerk and that his continued service at the Court inanother chambers was “in violation of my right to law clerk
services.” Ex. 7. Similarly, Judge Newman was fully informed that her judicial assistant had resigned on April 19.
See Ex. 4. Yet again 8 days later, she emailed all judges
stating: “I never released my judicial assistant [] from mychambers staff. His movement to your staff, without consultation with me, violates his confidentiality and other obligations to me.” Ex. 7.
Despite being repeatedly told that the judicial assistant chose to leave her chambers because of her alleged
abusive treatment of him, Judge Newman has accused the
Court, various judges, the Chief Judge, and the Clerk of
Court on multiple occasions of having improperly taken her
judicial assistant away and/or depriving her of secretarial
services. See Exs. 3, 8–9; see
Aff. [4] ¶¶ 4,
10–11, 13 and attached exhibits (quoting Newman May 17
email stating that he “deprived [her] of secretarial services” (alteration in original)).
These facts raise concerns about Judge Newman’s confusion, memory, and ability to interact with court staff—allof which contribute to our concerns that she may have adisability that renders her unfit to continue as an active
judge.
Moreover, Judge Newman’s career clerk, who has beenwith her for several years, on advice of counsel, refused toanswer basic questions from the Committee about her

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responsibilities in chambers or about Judge Newman’s
mental fitness, instead invoking the Fifth Amendment
privilege against self-incrimination. That invocation wasproper only if it was reasonable to believe that answering
questions about the clerk’s duties could expose the clerk tocriminal liability. See Doe ex rel. Rudy-Glanzer v. Glanzer,
232 F.3d 1258, 1263 (9th Cir. 2000). For example, when
asked, “Q. We understand that you are her career clerk.
Can you tell us about that role and what your responsibilities are? A. I am going to invoke my right under the Fifth
Amendment to avoid self-incrimination.”
Deposition at 4:5–9. She further invoked the Fifth Amendment
when asked about her perceptions of Judge Newman’s ability to carry out her job. Id. at 30:4–9.
4. Dysfunctional Behavior Suggests Disability
and Creates Workplace Abuse Concerns
Judge Newman has baselessly and relentlessly accusedvarious staff of stealing her computers, stealing her files,
depriving her of secretarial services, and acting as counsel
against her.
Aff. [4] ¶¶ 4, 10–11, 13, 25–40
and attached exhibits;
Aff. [11] ¶¶ 2–6, 8;
Exs. 3, 8, 9 at 9;
Aff. [1] ¶ 14. Staff described Judge
Newman in their interactions with her as “aggressive, angry, combative, and intimidating”; “bizarre and unnecessarily hostile”; making “personal accusations”; “agitated,belligerent, and demonstratively angry”; “ranting, rambling, and paranoid”; and “mumbling” and “pacing.”
Aff. [4] ¶ 37;
Aff. [11] ¶ 5;
Aff. [2] ¶ 3;
Aff. [8] ¶¶ 3, 5;
Aff. [7] ¶ 19;
Aff. [1] ¶ 33. One staff member indicated that “Judge Newman is simply losing it mentally.”Aff. [2] ¶ 12. Given that this behavior isreported to occur in scenarios where it is clear that Judge
Newman is confused or has forgotten how to perform tasks
that she could previously do, or is unable to comprehend
instructions, there is a reasonable basis to conclude that29

IN RE COMPLAINT NO 23-90015

this inappropriate conduct towards staff is related to a disability.
Judge Newman has become convinced that, when her
judicial assistant’s computer was moved out of her chambers along with him (as is standard practice), seeAff. [4] ¶ 28, files from her chambers were removed
with it. Multiple staff members from the IT Department
and the Clerk’s Office have explained to her over and overagain that all chambers information was stored on her
chambers’ shared network drive, not the hard drive on thatcomputer; that the hard drive on that computer had specifically been checked multiple times and contained none ofher chambers’ information; and that IT could help her locate whatever information she needs. See
Aff. [4] ¶¶ 27–40 and attached exhibits;
Aff. [11] ¶¶ 2–6. Judge Newman, however, either was unable to understand or refused to accept these explanations.
The Clerk of Court 13 detailed Judge Newman’s repeated email accusations that he was involved in “illicit removal” of equipment from her chambers and that heparticipated in the theft or removal of chambers records including her financial disclosure information—along withaccusations that he was acting as Chief Judge Moore’s lawyer, that he was Judge Newman’s “adversary,” and that herepeatedly withheld secretarial services from her.
May 31 Aff. [4] ¶ 4 and attached exhibits. He reported how
he had to explain to Judge Newman five separate times
that no one had stolen her computer or her records and that
he verified that fact and had the IT Department verify it
on multiple occasions. Id. ¶¶ 25–40; see alsoAff. [4] ¶ 27 & Ex. C at 2 (“Because all of your chambers
materials, drafts, and documents are stored on your chambers network drive and not the local desktop, nothing about
13 Before July 1, the court’s current Clerk of Court was

Deputy Clerk and at times Acting Clerk of Court.

30

IN RE COMPLAINT NO 23-90015

the move of this desktop ever hindered, restricted, or interfered with access by either you or your chambers staff tothese materials.”). He described Judge Newman’s behavior
towards staff as “agitated, belligerent and demonstratively
angry.” Id. ¶ 37 and attached exhibits. And he has statedthat “the hostile nature of Judge Newman’s personal accusations against me stands in sharp contrast to how I haveinteracted with any of the other 50-or-so federal judges
with whom I have worked both in the Federal Circuit andin other federal courts since I began working in the federal
judiciary in 2004.” Id. ¶ 5.
After Judge Newman had once again accused the
Clerk’s Office employees of stealing her computer and files,
on May 16, 2023, IT staff were sent to her chambers to assist her.
Aff. [11] ¶ 2; see alsoAff.
[8] ¶¶ 1–5. The IT staff told Judge Newman that they knew
exactly where her financial disclosure information was located on her desktop and offered to show her.
Aff. [11] ¶¶ 3–5. She angrily refused to let them touch
her computer. Id. ¶ 3. They offered to show her law clerk
where the file was located if she preferred. Id. ¶ 6. She
refused that assistance as well. Id. She was “clearly upset
and frustrated and was walking back and forth mumbling
about how her computer and phone had been taken awayfrom her when that was not the case.” Id. ¶ 8; see alsoAff. [8] ¶¶ 3, 5 (“Judge Newman was pacing back andforth and visibly angry and frustrated . . . . I found Judge
Newman’s behavior during this whole event to be very bizarre and confusing.”). Judge Newman became angry, said
that her judicial assistant had stolen her computer, phone,and files, and demanded “that she wanted her ‘twentyyear-old computer’ back.”
Aff. [11] ¶ 4.
Her anger was so intense it raised fears that she might collapse. Id. ¶ 7 (“I got worried that Judge Newman was getting so angry that she might collapse or have a heart attack

31

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if the conversation continued.”); id. ¶ 8 (reporting being
shaken by the exchange).
Judge Newman’s accusatory interactions with staff
about her supposedly stolen computer continued unabatedeven into July of this year, when she claimed that “decadesof my work and my information” were on the computer andaccused staff of “clever dissembling,” being “shameful,” andengaging in “trickery” after they again repeatedly explained that none of her information was on the hard driveof that computer. See Ex. 9 at 29. In a single two-day period from July 6 to July 7, more than two dozen emails
passed between Judge Newman and the Director of IT, theHelp Desk Manager, and the Clerk of Court regarding her
allegations that they stole her computer and files and theirattempts to explain to her that her files all reside on her
chambers’ shared drive and none of her files were on the
judicial assistant’s hard drive. See generally Ex. 9; id. at 4
(Director of IT confirming “
has no access toJudge Newman’s shared drive nor has any of Judge Newman’s data stored locally on his PC.”); id. at 5 (IT staff
member confirming the same). The staff respectfully andpatiently explained to Judge Newman that “[e]very chambers stores those items on their network drives which areaccessible to every computer in that chambers. The items
you describe are located on your network drive.” Id. at 18;
see also, e.g., id. at 22 (Clerk of Court explaining to Judge
Newman that “I am at a loss for how different a way I canagain explain what I have explained to you repeatedly formonths. Your files are on your network drive. You haveaccess to everything.”); id. at 9 (Director of IT again explaining “[w]e have checked, double checked and triple
checked and there is no data on any local computer or drivethat belongs to you. All of your data is on the Newman
share.”); id. at 12 (Director of IT confirming a third timethat “no Newman Chambers files reside on

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PC. There is nothing to return you as we informed you previously that all Newman Chambers files were moved to theNewman Share . . . .”); id. at 15 (Clerk of Court explaining“we have offered repeatedly to assist you with locating any
files you cannot find or access. However, through our many
conversations, we have yet to learn of any file or record of
your chambers that is actually missing or unavailable.”);id. at 26 (“Please let us know what you cannot locate. Our
staff is available and willing to assist you.”).
Various employees have described the toll that recent
encounters with Judge Newman have taken on them, including by causing them serious anxiety, stress, and discomfort.
Aff. [4] ¶¶ 5, 36 (“wasaudibly upset and bothered and he said it was due to how
Judge Newman behaved and treated him.”); id. ¶ 6 (statinginteractions with Judge Newman caused “emotional stressand discomfort, including loss of sleep and heightened anxiety”);
Aff. [11] ¶ 8 (“I was left shaken andupset from this experience.”);Aff. [1] ¶ 37 (“The pastfew months have been extremely stressful and have caused
severe anxiety and emotional distress brought on by Judge
Newman’s recent behavior towards me.”);Aff. [9]¶ 14 (“[W]orking in [Judge Newman’s] chambers was hurting my ability to complete my work, taking a toll on mymental health, and harming my relationships at the
court.”);
Aff. [10] ¶¶ 9, 10 (describing
as “visibly emotional” due to Judge Newman’s behavior
and having confided “the toll that this entire experience
was taking on his physical and mental well-being, including seeking help from medical professionals”). Interactions
with Judge Newman are now so dysfunctional that the
Clerk of Court has advised staff to attempt to avoid interacting with her in person or, when they must, to bring a coworker with them.
Aff. [4] ¶ 6;Aff.
[8] ¶ 1;Aff. [11] ¶ 1.

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5. The Response Alleges that She Can “RunHer Chambers as She Sees Fit”
Rather than dispute the specific evidence provided bystaff members, Judge Newman insists that none of it indicates any cause for concern and that short of “obvious redlines such as criminal activity or sexual harassment,” she“is free to run her chambers as she sees fit”—even if it takes
a toll on the health of employees. Response 48. Judge Newman’s assertion that it is “entirely appropriate” to refuse toparticipate in the EDR process and “refus[e] to accept” analternative work arrangement under the Court’s EDR
plan, Response 48 n.38, is simply not consistent with court
rules or current workplace conduct standards. And wherean alternative work arrangement was created specificallyfor the benefit of an employee who had raised concerns
about abuse and retaliation by Judge Newman, it is especially inappropriate for Judge Newman to then threaten to
fire the employee (and tell others that she would have him
arrested and removed from the building) unless he ignores
the alternative work arrangement. Such behavior is notreasonably defensible. 14 Indeed, it is so far outside thenorm that, coupled with the other evidence describedherein, it supports the concern that Judge Newman’s behavior may be the result of cognitive impairment.
The Response suggests that if Judge Newman“treated staff more harshly than was necessary,” it may be
because of the “Committee’s unjustified actions which havetaken an enormous toll on Judge Newman.” Response 5354. But in her August 25, 2023 discussion with Dr. Carney,
Judge Newman responded to a question about this proceeding’s effects on her mental state: “‘none! To my amazement, even in this turmoil-well perhaps that’s the fatal
flaw—it’s not getting to me.’ She stated her mood remains
upbeat.” Ex. 10 (Carney Rep.) at 4.
14

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In Adams, the behavior of Judge Adams towards othersin the courthouse was held sufficient to support an ordercompelling medical examinations for disability as determined by the special committee. See In re Complaint of
Judicial Misconduct, C.C.D. No. 17-01 at 2–10, 16–17, 24–
29, 35–36 (U.S. Jud. Conf. 2017). So too here. It is consistent with the Act to conclude that a Judge who remains
unaware of basic standards of conduct towards employees,
who demonstrates memory loss, confusion, lack of comprehension, and who lashes out at staff with baseless accusations of theft or hacking, might be impaired by a cognitive
disability, requiring the Committee-specified medical examinations as part of a complete investigation.
We find that the evidence contained in the employee
affidavits and deposition created a reasonable basis for theCommittee’s May 16 Order directing medical examinations
and the specified medical records to ascertain whether
Judge Newman may have a disability. And the evidence
also supports the Order’s request that Judge Newman sit
for an interview, in which she could enhance the accuracyof the proceeding by, among other things, correcting any
errors in the evidence or aid understanding of its implications.
6. The Response Incorrectly Claims Lack of an
Opportunity to Counter the Employee Allegations
Judge Newman’s August 31 Response complains forthe first time that she was never given an opportunity tocontest the information provided in affidavits in the record.
Response 39–40. That assertion is incorrect. The Committee detailed much of the evidence in its May 3 Order thenagain in its May 16 Order and its June 1 Order. And innone of her responses did she challenge any of the evidence.
In its June 1 Order, the Committee recognized that Judge
Newman might wish to contest the Committee’s recited35

IN RE COMPLAINT NO 23-90015

bases for its Order and for that very reason provided Judge
Newman all the affidavits and the deposition transcript on
which the Committee had relied. June 1 Order at 5. She
chose not to challenge them. Instead, in her July 5 Brief
she made the choice not to “delv[e] into the minutia[e] ofthese affidavits,” but instead to dismiss them as reflecting“petty grievances” and to argue that “even assuming” theinformation in them was true, it “doesn’t even approachprobable cause to believe that Judge Newman is mentally
and/or physically disabled.” July 5 Br. 15. Other aspectsof the affidavits she dismissed as “hardly worth respondingto.” Id. Having bypassed the offered opportunity to contest
the information in the affidavits, Judge Newman cannot
claim now that she was never given the opportunity to doso. 15To the extent Judge Newman now alleges that theCommittee did not permit her to include basis-contesting(or other) evidence in her July 5 Brief or to request an evidentiary hearing (for example, to cross examine the affiants), she waived those arguments. In its June 1 Order,
the Committee explained its tentative view that “[t]here
are no percipient fact witnesses to additional events thatare relevant to the misconduct determination” and that
15 In addition, the Committee made clear in its May 16

Order that it wanted to interview Judge Newman so that“she could provide the Committee with information relevant to the Committee’s investigation, including correcting
any error of fact.” May 16 Order at 23–24 (emphasis
added). Judge Newman refused to take that opportunity
to contest any information the Committee had gathered. In
fact, at the end of the oral argument on July 13, the Committee offered Judge Newman’s counsel extra time to address any topics he wished to, and he declined to use thattime to challenge the affidavits. Oral Arg. Tr. at 39:22–
40:6.

36

IN RE COMPLAINT NO 23-90015“the question whether Judge Newman’s responses to theCommittee’s orders constitute ‘refusing, without goodcause shown, to cooperate in the investigation,’ Rule4(a)(5), can be determined based upon the paper record established by the Committee’s orders and Judge Newman’s
filed responses, along with any legal argument Judge Newman wishes to submit.” June 1 Order at 4. Judge Newman’s counsel quoted that language and expressly stated:“We agree with that assessment.” June 15 Letter at 3. If
Judge Newman wanted to contest the decision not to holdan evidentiary hearing and conduct cross examination, she
had the opportunity to do so, having been provided the evidence no later than June 1. Judge Newman made no such
request in her filings on June 15, July 5, July 12, July 24,
or August 14. Nor did she make any such request at theoral argument conducted on July 13. In short, Judge Newman had many chances to challenge the Committee’s evidence and she chose not to do so. Even now, she makes no
specific allegations of any error in the many staff accountsof deeply troubling interactions, many of which are corroborated by Judge Newman’s emails. Her claim that she believed she could not provide contrary evidence is also beliedby the fact that she did provide new evidence with her July
5 submission and more new evidence and a declaration
with her August 31 submission.
***
The evidence received from court staff, standing alone,
provides a reasonable basis for the Committee’s May 16 Order concerning medical examinations, medical records, andan interview. Judge Newman had many opportunities andnever disputed it.
B. The Evidence of Productivity Deficiencies,
Even With a Reduced Workload, Supports theCommittee’s Order37

IN RE COMPLAINT NO 23-90015

In addition to the overwhelming evidence of Judge
Newman’s troubling interactions with staff, evidence fromthe Clerk’s Office supports our conclusion that the Committee had a reasonable basis for the ordered medical evaluations, records, and interview. The Clerk’s Office data 16
demonstrate that Judge Newman—despite having a significantly reduced workload compared to other active judges
on the Court—takes an extraordinarily long time to produce opinions. From October 1, 2020 through September
30, 2021, Judge Newman authored only 25 opinions (including dissents/concurrences), while the average active
judge authored 44 opinions. See
Aff. [12] ¶¶10, 12;Aff. [13] ¶¶ 14, 15. Judge
Newman averaged 249 days to author a majority opinion—
more than four times as long as other active judges (61days).
Aff. [12] ¶¶ 11, 13.
Despite reductions in Judge Newman’s workload, thistrend has continued in recent months. The court has tried
to support Judge Newman for years, reducing her work in
response to concerns about her productivity. Judge Newman last participated in motions panels in January 2021.
Aff. [13] ¶ 23. Motions panels area time consuming and required aspect of an active judge’s
workload. Active judges participate in 3–4 months of motions panels each year. In 2023, there have been approximately 70 motions resolved by written opinions eachmonth. In 2022, there were an average of 63 motions resolved by written opinion each month. R&R 54 n.16. Judge
16 Judge Newman does not meaningfully dispute theClerk’s Office data, but instead points to analyses of publicly available data purportedly showing Judge Newman’s
productivity and delay are unexceptional. For the reasons
explained in the Committee’s R&R, see R&R 56–58, theCouncil credits the data from the Clerk’s Office.

38

IN RE COMPLAINT NO 23-90015

Newman has not disputed that she acquiesced in the 2021
reduction in workload by excusing her from the motions
panel duties.
Further reduction in her workload occurred from May
2022 through April 2023—a period in which Judge Newman sat on half the number of cases as her colleagues (65compared to 128 for an average active judge). Judge Newman acquiesced in this reduction as well. There is no evidence that she ever objected to sitting less than her
colleagues, and her monthly requests were consistently
worded to indicate she would sit “as needed.” Ex. 11.
Despite a substantially reduced workload, from October 2021 through March 2023, Judge Newman authored(including dissents/concurrences) less than half the number of opinions of an average active judge (28 compared to
61 for an average judge) and her opinions took approximately four times as long to issue (199 days compared to
53 days). 17 See
Aff. [12] ¶¶ 15, 17;
Aff. [13] ¶¶ 17, 18. She took four times
as long to write half the opinions while sitting on half thenumber of cases as her colleagues. 18
17 Judge Newman was not merely an outlier from theaverage active judge, but from all active judges who sat thefull period reviewed. The next closest judge authored 55
opinions (43 majority and 12 dissents/concurrences) withan average time to issuance of 106 days.
Aff. [13] ¶ 19. Thus, the next closest judge wrote
approximately twice as many opinions in approximately
half the time.
18 On March 8, 2023, when the Council unanimously
voted not to allow new case assignments to Judge Newman
because of her extraordinary delays, she had 9 majority
opinions that had been pending for an average of 126 days.

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IN RE COMPLAINT NO 23-90015

The Council finds these data raise a concern that Judge
Newman is no longer capable of efficiently and effectively
carrying out the work of an active judge and support theCommittee’s conclusion that there was a reasonable basis
to seek medical examinations, medical records, and an interview to determine if these delays are attributable to adisability. See 28 U.S.C. § 351.
III. The Refusal to Comply with the May 16 Order
Was Not Excused by Good Cause
Judge Newman’s refusal to comply with the Committee’s May 16 Order was not excused by good cause. Judge
Newman’s two main arguments are that this JC&D mattershould be transferred, and she has already provided two
medical reports. She also has attacked earlier orders andactions by the Chief Judge or Committee as a basis for excusing non-compliance with the May 16 Order. We findthese arguments meritless.
A. The Request for Transfer Does Not Provide
Good Cause for The Refusal to Comply with the
May 16 Order
Judge Newman has maintained, and continues tomaintain, that this matter should be transferred to the
On May 25, when Judge Newman asked the Council to reconsider paneling her for new cases, she still had 7 of those
9 opinions which had been pending for an average of 163
days. As of September 1, 2023, Judge Newman had issued
4 non-precedential majority decisions, and they took her on
average 255.5 days each. She continued to have 3 majority
opinions in her backlog which averaged 257 days (one ofwhich was the oldest case in the court). In the last six
months while sitting on zero motions panels, and zero newcases, Judge Newman has taken on average 255.5 days towrite her 4 majority opinions.

40

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judicial council of another circuit—and that, barring transfer, she has good cause to refuse to comply with the Committee’s May 16 Order. We disagree on all counts. We
conclude that the decision not to transfer does not excuse
Judge Newman’s refusal to comply with the Order and that
granting Judge Newman’s transfer request 19 was never appropriate—and certainly is not at this point.
Under the rules, transfer is warranted only in “exceptional circumstances.” See Rule 26; Implementation of the
Judicial Conduct and Disability Act of 1980, Report to theChief Justice of the Judicial Conduct and Disability Act
Study Committee, 239 F.R.D. 116, 214 (Sept. 2006) (Breyer
Committee Report) (“Transfers should not be a regular occurrence.”). Judge Newman has not identified (nor do wesee) exceptional circumstances warranting transfer. Indeed, her response to the R&R never once acknowledges
this demanding standard.
Judge Newman’s arguments for transfer—by way of
seeking to justify her refusal to cooperate—generally relyon (1) inapplicable authority or (2) unfounded accusationsof bias. As explained below, her authority is unpersuasive,and her arguments as to bias—essentially, that because
the judges of this circuit have worked with her, they cannot
be impartial—if accepted, would convert the relatively routine into the exceptional, with adverse consequences for thepolicies of the Act and of proper judicial administration
more generally.
19 Under Rule 26, Judge Newman’s transfer request(and the decision not to grant that request) more preciselyrefers to a request that the Chief Judge or Council ask the
Chief Justice of the United States to transfer. For simplicity’s sake, and because the distinction is immaterial to our
discussion, we characterize the request as concerningtransfer itself.

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IN RE COMPLAINT NO 23-90015

As to authority, while Judge Newman insists that matters involving a circuit judge that get to the Committee
stage are always transferred, her examples consist only ofcases involving isolated alleged instances of past misconduct not related to disability. Response 73–74. She gives
no example—nor are we aware of any—where a case involving disability was transferred. And for good reason.
Although an investigation into a discrete incident or set ofincidents that occurred entirely in the past could potentially be pursued from afar without serious detriment, thiscase, by contrast, involved ongoing behavior that was having ongoing effects on the functioning of court staff in the
court’s building and the functioning of this court. As a result, ready access to the Committee was vitally important
both for ensuring that all relevant information was captured in the investigation and for providing court staff confidence that they were being heard. The importance of thataccess is underscored by one of the Breyer Committee Report’s factors counseling against transfer—i.e., “outside
judges’ relative ignorance of local circumstances and personalities.” 239 F.R.D. at 215; see R&R 87–88. 20
As to alleged bias, Judge Newman argues that members of the Judicial Council have “personal knowledge ofdisputed evidentiary facts concerning the proceeding” andare therefore biased—requiring transfer. See Response

20 As the Committee has observed, the Breyer Commit-

tee Report’s factors counseling against transfer weighagainst transfer in this case. See, e.g., May 3 Order at 10–
11; R&R 91 (“For the reasons stated, based on considerations set forth in the Breyer [Committee] Report, we think
it was proper in this matter not to . . . transfer.”).

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71–73. 21 This argument is unpersuasive on a couple of levels.
First, this investigation has significantly narrowed—
from originally considering whether Judge Newman suffered from a disability, to now (since June 1, 2023) considering whether her failure to cooperate constitutes
misconduct under the rules. As the R&R explained, itwould “present a different question if a particular interaction between judges provided the core evidence of suspected disability and that interaction was likely to be a
subject of dispute at a hearing.” R&R 73. But here, “[t]here
were no personal interactions between Judge Newman andother judges that would come up as disputed facts.” Id. Indeed, the only question before the Council is whether toadopt the proposal set forth in the R&R.
Second, Judge Newman’s argument simply proves toomuch. The argument appears to be that judges on thiscourt have views of Judge Newman by virtue of having interacted and worked with her, and that such knowledge
See
prevents impartiality and demands transfer. 22
21 In advancing this argument, Judge Newman quotes

from 28 U.S.C. § 455, the judicial recusal statute. Assuming, arguendo, that this statute applies in this context,
each member of the Council has carefully considered
whether recusal/disqualification was required under § 455
and determined that it was not. Each member of the Council likewise carefully considered whether recusal/disqualification was required under Rule 25 and determined that
it was not.
22 To the extent that Judge Newman believes thatjudges who attempted unsuccessfully to broker an informal
resolution with her to avoid these proceedings, March 24
Order at 5–6, are necessarily biased or must necessarily43

IN RE COMPLAINT NO 23-90015

Response 71–73. The implication of this argument is thatcircuit judges—who will necessarily interact with their colleagues in the same circuit—may not sit on disability proceedings concerning those colleagues. This is plainly not
the case. To the extent she claims the Judicial Council
members are biased against her because she dissents morethan any other judge on the court, she identifies no reason
why her long practice of dissenting especially often would
somehow now be the cause for the present inquiry. Her assertions of bias are grounded in little more than an assertion that her colleagues are biased simply because theyknow and work with her.
Rule 25 provides particular standards for disqualification. And the commentary to that rule expressly statesthat “a judge is not disqualified simply because the subject
judge is on the same court” and that bias or prejudice warranting disqualification must be “created by circumstances
other than an association with the subject judge as a colleague.” Rule 25 cmt. As the R&R explained, by design,
the statute and rules anticipate that judges will institute,investigate, and ultimately decide disability proceedings
about their colleagues. See, e.g., 28 U.S.C. §§ 351–353 (requiring chief judge to receive and review complaint andform special committee); Rule 11(a) (requiring chief judge
to review complaint), 12(a) (requiring the special committee to consist of chief judge that identifies complaint); seerecuse, that is not correct. It has historically been, andshould continue to be, the case that when a judge reaches
the stage where there are concerns about mental fitness,
the judge’s colleagues step in to try to address the issue informally with the judge (and, sometimes, family and others
closest to the judge). Doing so is not only consistent withthe rules, but entirely appropriate. If attempting to speakwith a judge after concerns have arisen necessitatedrecusal, it would stymie the informal resolution process.

44

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also R&R 73–74. Congress and the Judicial Conference
were certainly aware of § 455, and also of the reality that“[j]udges at every level of the system interact with eachother frequently and in many ways.” Irving R. Kaufman,
Chilling Judicial Independence, 88 Yale L.J. 681, 711–12(1979) (describing how circuit and district judges, especially within a single circuit, commonly get to know eachother). The way Congress structured the Act and the Judicial Conference structured the rules suggests that bothbodies concluded that § 455 posed no barrier to judges deciding disability proceedings about their fellow judges, including those on the same court. 23
The bases for deciding not to grant Judge Newman’stransfer request were, and remain, sound. These bases—
which easily support the conclusion that this matter does
not present the requisite “exceptional circumstances”—
were described in the R&R. See R&R 86–92. But they areworth recounting here, particularly by way of addressing
Judge Newman’s latest criticisms of those bases.
At the outset, we note that Judge Newman first suggested transfer of this matter on April 21, 2023. By thatpoint, the Committee had already conducted more than adozen interviews and a deposition, and many troubling
events were occurring in real time. Just two days earlier,on April 19, two of Judge Newman’s chambers staff cameunsolicited to the Committee to complain about their
23 We note also that, in 28 U.S.C. § 372(b), Congressprovided that a majority of the members of a circuit’s judicial council may sign a certificate of disability as to one of
their fellow circuit judges (the certificate to be presented to
the President). This provision is another instance in which
Congress contemplated, and deemed unproblematic, an assessment by a circuit’s judges as to another judge on theircircuit.

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treatment by Judge Newman and to request the court’s assistance in relocating them. Both indicated that working
with Judge Newman was taking a toll on their mental
health, and both requested no further contact with Judge
Newman. The Chief Judge, in consultation with the Committee, was able to relocate both employees, providingthem real-time relief.
Indeed, the ongoing nature of Judge Newman’s troubling interactions with staff demonstrates why it was especially important for this matter not to be transferred toanother circuit. Behavior that tended to confirm concerns
about Judge Newman’s mental state occurred on an almost
weekly basis during most of the Committee’s investigation.
Because the Committee consisted of members of this court,
staff were able to report concerns to the Committee on an
almost real-time basis, and they did. That ensured that
the Committee developed a complete picture of the natureof Judge Newman’s behavior as efficiently as possible andalso reassured staff that they had an immediate avenue forpresenting concerns raised by Judge Newman’s behavior sothat they could be addressed in this process. If the investigation had been transferred to another court, unknown to
the staff and less accessible to them, the investigation
could not have been carried out in the same expeditious
manner. Acting expeditiously is one of the Committee’s
charges, as the Committee explained. See R&R 87–88; seealso 28 U.S.C. § 353(c); id. §§ 352(a), 353(a); H.R. Rep. 961313 at 11; May 16 Order at 24; May 22 Order at 2–3.
Judge Newman disagrees that the Committee’s ability
to gather information efficiently and timely address employee concerns was relevant to the transfer decision—or
indeed, that the information gathered from employees was
relevant to the Committee’s investigation at all. See Response 100–01. But we find her disagreement is not well
reasoned. For example, as to the relevance to the transfer

46

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decision, Judge Newman speculates that if the matter had
been transferred, nothing would have precluded “forwarding memoranda of . . . conversations or affidavits submitted by the staff” to another judicial council. Id. at 100(citing the speed of electronic transmission). Yet this argument fails to meaningfully engage with the Committee’sobservation (which we endorse) that (1) “another court
could not, from afar, create an environment in which this[c]ourt’s staff could raise concerns based on their interactions with Judge Newman in an almost real-time fashion”;(2) “without that ready ability to report incidents, . . . important information in this investigation might have beenlost”; and (3) “[p]articularly in this case, placing distance
between the individuals who witness and experience a subject judge’s behavior and the investigating body would haveinhibited, not promoted, the aims of the Act.” R&R 89. Indeed, as a factor counseling against transfer, the Breyer
Committee Report notes that “transfers may increase timeand expense if there is the need to ship files, arrange witnesses, and handle other matters from a distance.” 239
F.R.D. at 215.
As to Judge Newman’s suggestion that concerns expressed by staff are not relevant to the investigation, we
think it beyond reasonable dispute that these concerns—as
to, among other things, memory loss, confusion, and lack ofcomprehension—are relevant as substantiating the Committee’s order. Cf. Response 101 (characterizing the perception of Judge Newman’s behavior only as “unnecessarily
hostile”). And, to the extent her suggestion of irrelevancerests on a belief that the Committee deems her delays inresolving cases alone a sufficient basis for its order, see id.,
the Committee has not limited its basis in that fashion.
In sum, we agree that the decision not to grant Judge
Newman’s transfer request was sound and are unpersuaded by her arguments to the contrary.

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Judge Newman also maintains that we should grant
her transfer request now. See Response 104. We rejectthat request. Transfer at this point, when the four-monthinvestigation involving more than 20 interviews with staff
is complete, there have been more than a dozen orders,Judge Newman has filed at least half a dozen substantive
letters or briefs, oral argument was conducted, and theCommittee issued a 111-page R&R with over 300 pages of
supporting evidence, simply makes no sense.
Moreover, Judge Newman’s prior representations
make clear that there is no handing this off to another circuit to just “wrap it up.” She has claimed that the process
was tainted from the outset, that all the employee affidavits were effectively coerced, and that a do-over is necessary. While she has indicated that she may be open to somekind of medical examinations if this proceeding is transferred, see Response 62, she has avoided any suggestion
that, if the matter were transferred, she would undergo thefull neuro-psychological testing that was recommended byDr.
and is the subject of the May 16 Order. In fact,
Judge Newman says she “will not, under any circumstances, submit” to the requests for the medical examinations and medical records made by the Committee “either
now or in the future.” Response 105 n.60; id. at 112 n.67
(indicating a “do-over” would be necessary if another circuit
determined these proceedings were “marred with impropriety”). And while she implies (in carefully qualified language) that she will undergo “appropriate medical
examinations,” Response 65 (emphasis added), she has also
stated that if transferred she intends to open a new negotiation, “including on selecting medical providers and setting the appropriate parameters of any examination,” May
25 Letter at 3. She has also pointedly reminded the Committee that the “effect” of transfer is that “the transfereecouncil is not bound by any evidence, reports, or decisions
made by the transferor council,” and she has expressly48

IN RE COMPLAINT NO 23-90015“reserve[d] the right to request that the transferee council
restart the entire process.” May 10 Letter at 5. These various representations belie Judge Newman’s assurance thattransfer is appropriate because “the only question now is
the evaluation” of the gathered evidence. Response 101(emphasis in original). What she describes as “evaluation”
is, in effect, a do-over.
Retaining this case also protects court employees bypermitting the Chief Judge and Council to respond to
Judge Newman’s ongoing conduct. The Breyer Committee
Report notes that the tendency of judges to fall victim to “akind of undue ‘guild favoritism’ through inappropriate
sympathy with the judge’s point of view or de-emphasis of
the misconduct problem” in these types of proceedings wasan important consideration in creating the report. 239
F.R.D. at 119. The report embodies this concern in its guidance on transfer considerations by recognizing that judges
outside the subject judge’s circuit might be “disinclined togo through the emotionally draining work of imposing
tough sanctions on judges not of their own circuit.” Id. at
215. Judge Newman’s conduct, which raises concerns
about her cognitive state, includes threatening to have employees arrested, retaliating against employees for reporting concerns about Judge Newman, and berating staff
regarding baseless allegations that she has been deprived
by them of her computer, files, and secretarial services. We
have an obligation to ensure that court employees are freefrom such abuse. Also important is ensuring that the harmto the public (e.g., litigants) is avoided by expeditiously resolving this matter. This conduct continues to have collateral effects on this circuit’s staff and the effective
administration of court business. Another circuit is notwell positioned to hear, assess, and remedy those problems.
Nor could another circuit handle the resolution as expeditiously as this circuit; that drawback, if this matter were49

IN RE COMPLAINT NO 23-90015

transferred, would further subject court staff to the conduct
described above.
Finally, to the extent Judge Newman suggests that thedecision not to grant her transfer request stems from a desire to “shield” the Committee’s work from review by another tribunal, see Response 101, the suggestion reflects afundamental misunderstanding of this process. The rules
already provide for review by the Committee on Judicial
Conduct and Disability of the Judicial Conference of theUnited States (JC&D Committee) appointed by the Judicial Conference of the United States. Rule 21. And they
ensure that the JC&D Committee, in its review of a matter,is independent of the circuit from which the matter arises.
Rule 21(c) (“Any member of the Committee from the same
circuit as the subject judge is disqualified from considering or
voting on a petition for review related to that subject judge.”).
Accordingly, transfer is not warranted at this time. For
the reasons previously articulated, Judge Newman’s request to transfer is denied without prejudice to refiling after she has complied with the Committee’s May 16 Order.
B. The Medical Evidence is Not Good Cause for
Her Refusal to Comply with the May 16 Order
The Response argues that two medical reports provided show that Judge Newman suffers from no disability
and thus justify (retroactively) her refusal to comply with
the Committee’s order. Specifically, it argues that the reports of Dr. Ted Rothstein and Dr. Regina Carney obviate
the need for the medical examinations and records orderedby the Committee and therefore render her refusal to cooperate with the order excusable. We reject this argument
for several reasons.
First, it is settled precedent that a subject judge may
not circumvent the investigation process by submitting
tests of her own choosing in lieu of those ordered by the50

IN RE COMPLAINT NO 23-90015

Committee. The holding of the JC&D Committee in the
Adams case flatly contradicts the suggestion that—by
simply providing alternative tests from her own providers—Judge Newman can effectively override the Committee’s decision that it is necessary to have the examinations,
including a full neuro-psychological assessment, of Judge
Newman by independent providers chosen by the Committee. See In re Complaint of Judicial Misconduct, C.C.D.
No. 17-01 (U.S. Jud. Conf. 2017) (Adams). One of the core
issues in Adams was whether a judge subject to a disability
inquiry could refuse to undergo tests ordered by an investigating committee and administered by providers selectedby the committee on the ground that the judge preferreddifferent tests administered by different providers. As the
JC&D Committee explained: “While Judge Adams has expressed a preference for being evaluated by an expert of hischoosing and an opportunity to direct to some extent thenature of the examination, we conclude that the Special
Committee and the Judicial Council appropriately exercised their discretion in determining that an examination
by an independent expert is necessary to ensure accuracy
and reliability of the procedures and examination results.”
Id. at 32; see also id. at 36 (“We share the Judicial Council’sview that input from an independent medical expert is necessary to fully and fairly assess Judge Adams’s mental condition and fitness to continue to serve as a judge.”). Here,
Judge Newman’s counsel admitted that (her first examiner) Dr. Rothstein had a long-time personal relationshipwith Judge Newman, 24 and counsel also has stated that hewas classmates in medical school with (the second examiner) Dr. Carney, 25 who was flown from Florida to
24 Oral Arg. Tr. at 38:18–24.

25 Ryan Davis, 2nd Doc to Evaluate Judge Newman Says

She’s Fit to Serve, Law360 (Sept. 7, 2023), available athttps://www.law360.com/ip/articles/1718953/2nd-doc-toevaluate-judge-newman-says-she-s-fit-to-serve.

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Washington, D.C., to interview Judge Newman and perform the 11-minute cognitive test featured in the resulting
report.
Adams makes it clear that it is misconduct for a subject
judge to refuse to comply with an order from a special committee for medical examinations on the ground that thejudge would prefer different tests administered by different
providers. We continue to believe that it is important thatindependent medical practitioners be selected to performthe medical examinations. Insisting upon an examination
by an independent provider “is necessary to ensure accuracy and reliability of the procedures and examination results.” Adams at 32. The rule from Adams serves animportant interest: ensuring that what may well be themost critical piece of the investigation—medical evaluations designed to ascertain whether the subject judge suffers from a disability impairing the ability to effectively
discharge the duties of office—are as accurate and reliable
as possible.
Second, the two reports Judge Newman has proffered
are not remotely substitutes for what the May 16 Order directs, including the specified full neuro-psychological examination (and medical records). Neither the 10-minutepartial MOCA nor the 11-minute 3MS are substitutes forthe ordered full neuro-psychological examination (sixhours) that Dr.
advised was both necessary andthat has been done in previous judicial disability inquiries.
Nothing submitted by Judge Newman provides any adequate explanation for how the radically different, lesser examinations reflected in Dr. Rothstein’s and Dr. Carney’s
reports are appropriate substitutes for the much more extensive examinations required by the May 16 Order. Given
the demanding nature of an active judge’s job, it would be
surprising if there were any sound basis for any such equation. There is nothing remotely adequate offered here.

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1. Dr. Rothstein’s Report
The Rothstein report relies on the Montreal Cognitive
Assessment (MOCA), a screening test that takes only about
10 minutes to administer. See Rothstein Rep. (Ex. 12), 13(MOCA test). The R&R pointed out flaws on the face of thereport that made the Rothstein report unreliable. And the
new declaration from Dr. Rothstein, submitted to theCouncil with Judge Newman’s August 31 Response, actually confirms the problems with his original report identified in the R&R. See Rothstein Decl. (Ex. 12).
The full MOCA provides a total of 30 possible points.
See R&R 100–102; Ex. 13. Dr. Rothstein noted that Judge
Newman was unable to write (due to a broken wrist) andthus could not complete portions of the test worth 2 points
and that she missed four points (4 of the 5 memory questions), which led him to report a score of 24 out of 28. As
the R&R explained, however, if Judge Newman could notwrite, she also could not have completed another portion of
the test (drawing a clock) worth 3 points and thus Dr. Rothstein inaccurately scored her test. See R&R 102. Dr. Rothstein’s new declaration confirms that Judge Newman could
not draw a clock. Rothstein Decl. ¶ 11. Therefore, he erredin crediting her with the 3 points related to the clock. Dr.
Rothstein does not dispute that if the 3 points attributableto drawing the clock are properly taken out of Judge Newman’s score, she actually scored a 21 out of 25. According
to the MOCA website this translates to a scaled score of 25
out of 30, which is below the normal range. R&R 102–03,
available at https://mocacognition.com/faq/ (last visited
September 17, 2023). Though that analysis was detailed
in the R&R, Dr. Rothstein’s new declaration does not dispute the conclusion about the proper score.
Dr. Rothstein’s new declaration also confirms anotherproblem with his earlier submission. He admits that he did
not review any of Judge Newman’s medical records before53

IN RE COMPLAINT NO 23-90015

forming his opinion but relied on her oral reports. Rothstein Decl. ¶ 9.
2. Dr. Carney’s Report
The report from Dr. Regina Carney submitted with the
Response was based on an interview with Judge Newman,a review of some medical records (it is not clear how complete the reviewed records were) and some information
about a judge’s job (it is not clear what), and administrationof a Modified Mini-Mental State Exam (3MS). Dr. Carneyreports that it took Judge Newman 11 minutes to complete
the test. Carney Rep. at 5. The test consists of 34 questions
that require the subject to answer such queries as “Can you
touch your nose,” “Who is the president of the UnitedStates,” to count from 1 to 5 in forward and reverse, and torecall three words throughout the course of the approximately 10-minute examination. See Carney Rep. Ex. 1. According to the creators of the test, the 3MS was notdesigned “as a screening tool for dementia” and “many of
the items in the . . . 3MS are not sensitive for detecting
dementia in its early stage.” Evelyn Teng & Helena Chui,
Manual for the Administration of the Modified Mini-Mental State (3MS) Test (1996) at 2 (3MS Manual); see also Lei
Feng et al., The Modified Mini-Mental State Examination
test: Normative Data for Singapore Chinese Older Adults
and Its Performance in Detecting Early Cognitive Impairment, 53 Singapore Med. J. 458 (2012) (concluding the 3MS“has limited value in detecting early cognitive impairment;
tests with better performance should be considered in clinical practice.”). According to the 3MS Manual, this test is
better suited to “monitoring the progression of dementia to
its middle and late stages.” Ex. 2 at 2.
3. Inadequacy for the Disability at Issue
Besides the just-identified problems, we do not see thetwo reports as adequate substitutes for compliance with
the May 16 Order because they do not come close to54

IN RE COMPLAINT NO 23-90015

persuasively taking account of the actual requirements of
the job at issue. To effectively discharge the duties of anactive circuit judge requires far more than the basic abilities tested by the MOCA and 3MS. The job of an active
judge involves a heavy workload of cases many of which
involve complex records, technical or otherwise specialized
facts, application of law to fact and often novel legal issues.
“It is axiomatic that the work of a lifetime appointed federal judge is demanding and requires the highest degree offunctionality.” Adams at 29. In a typical month, an active
Federal Circuit judge is assigned to three to four panels,
each panel consisting of four argued cases and two cases
submitted on the briefs, for a total of 18 to 24 cases permonth. And all of these cases are heard in a single week.
Each can involve extensive briefing and even more record
material that the judge must review, comprehend, and analyze to resolve often-numerous disputes about often-complex and specialized factual and legal issues.
The
concentration and memory required is a league apart fromthe ability to recall simple “everyone knows” facts and ahandful of words, and the stamina required is beyond that
tested by the MOCA (10 minutes) or 3MS (11 minutes). For
each panel, a judge hears two consecutive hours of oral argument (four cases with argument lasting 30 minutes).
Thus, a Federal Circuit judge needs to be able to distinguish between and decide 18 to 24 cases, 12 to 16 of which
are argued in a single week.
This Court has the difficult and unenviable task of ascertaining whether Judge Newman suffers from a disability rendering her “unable to discharge the duties of [her]particular judicial office.” Rule 4(c) (emphasis added). We
find that neither Dr. Rothstein’s report nor Dr. Carney’s
report permits the Judicial Council to make that determination. Judge Newman has not established that these reports are adequate substitutes for the medical
examinations and medical records required (and interview

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requested) by the May 16 Order. In particular, given thenature and demands of the job as an active judge, and thelarge body of evidence demonstrating Judge Newman’s potential cognitive problems, the full neuro-psychologicalbattery of tests required by the May 16 Order is necessary.
The Council concludes that neither Dr. Rothstein’s nor Dr.
Carney’s reports provide retroactive good cause for Judge
Newman’s refusal to comply with the Committee’s order.
C. The Criticisms of Earlier Orders and Actions
Do Not Undermine the Duty to Comply with the
May 16 Order
Judge Newman’s Response has sought to establish
good cause for non-compliance with the May 16 Order byattacking earlier orders and actions and trying to constructa general picture of a hostile, bad-faith course of action, riddled with improprieties, by the Chief Judge and the othermembers of the Special Committee. This attack on how thethree judges carried out their difficult statutory obligations
is unwarranted and does not undermine the amply supported May 16 Order. The Council itself unanimously took
some of the complained-of steps, e.g., the suspension of newcase assignments. And it has scrutinized all the Response’s
particular assertions about and characterizations of events
out of which the Response creates its accusatory portrait.
After thorough consideration and review of the record, weconclude that the assertions and characterizations are incorrect and unfounded and that the overall portrait whollylacks merit. We see nothing in the Chief Judge’s and Committee’s course of action but good faith execution of a difficult, statutorily assigned task.
We thus reject the
Response’s pervasive attempt to establish good cause fornon-compliance with the May 16 Order by focusing onother orders and actions.

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We divide our discussion of the Response-raised matters separate from the May 16 Order into two sections. We
first address the Response’s effort to undermine the May
16 Order by criticizing certain aspects of the Chief Judge’s
March 24 Order (identifying a complaint) and the Committee’s April 7 Order (the first medical-examination order).
We then address the assortment of other attacks on how
the Chief Judge and Committee proceeded.
1. The Criticisms of the March 24 and April 7
Orders Do Not Undermine the May 16 Order
The Response seeks to undermine the duty to comply
with the May 16 Order by focusing on asserted flaws in two
earlier orders—the March 24 Order identifying the complaint and the April 7 Order that first required medical examinations. The core argument is that (a) these orders
were critically dependent on statements that Judge Newman suffered a “heart attack” and underwent coronary
stent surgery in 2021 and had a “faint[ing]” episode in 2022
and these statements are unsupported (even “fabricated”)
and (b) everything that followed must as a consequence bethrown out as illegitimate. Response 6, 41–43. This contention is incorrect in both its premises and in its conclusion about the implication for the present matter of noncompliance with the May 16 Order.
The premises of the Response’s argument regarding
the March 24 Order are defective for multiple reasons.
First, the Response is flawed regarding the existence of theepisodes at issue. As to a 2022 “faint[ing]” episode, thereis evidence of just such an occurrence.
saw
Judge Newman in 2022 being assisted back to chambers
and was told in Judge Newman’s presence that she had justfainted and could not walk without assistance. See
Aff. [1] ¶ 6. As to a “heart attack,” the Committee quickly
recognized that “heart attack” was too specific a term if

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understood to refer to a myocardial infarction, and itsought information about the broader category of “cardiac
event.” See, e.g., May 16 Order at 4–5; R&R 81–82
affidavit states that Judge Newman had a cardiac
condition and “at least one cardiac-related procedure.”Aff. [1] ¶ 9. When asked at oral argument before
the Committee about whether Judge Newman had experienced a cardiac event and was hospitalized for it in 2021
and/or 2022, her counsel refused to say. Oral Arg. Tr.
17:23-18:5; 18:22-19:4; 20:11-19; R&R 82. The record thus
does not refute the assertion of a 2022 fainting episode or
the existence of a 2021 cardiac event serious enough to require a visit to the hospital or insertion of a stent or othertreatment. Judge Newman presented medical evidence inboth her July 5 and her August 31 submissions, yet she refused to submit any medical evidence from her cardiologist
or pulmonologist regarding her cardiac events and procedures. She refused twice to interview with the Committee
where she could have clarified these facts and chose not tosubmit her own declaration on these points.
Second, the Response is also critically wrong about therole of these two recited incidents in the March 24 Order.
The two physical episodes at issue were merely possible
causes of the symptoms, such as memory, confusion, andstamina problems, that were the basis for the March 24 Order. The points Judge Newman focuses on were mentionedon the first page of the order as historical background to
explain why Judge Newman was, with her acquiescence,
operating under a reduced caseload—a fact that (at least
as of 2022) is undisputed and borne out by data from the
Clerk’s Office. But the March 24 Order did not rely on theheart attack (or surgery) or fainting as the basis for identifying a complaint. To the contrary, the Order set out information about Judge Newman’s behavior (including“allegations that Judge Newman has exhibited58

IN RE COMPLAINT NO 23-90015

inappropriate behavior in managing staff” and staff concerns about, e.g., her memory, confusion, and focus), notedthat Judge Newman had agreed to forgo motions-panel
participation and acquiesced in a greatly reduced workload, and laid out data from the Clerk’s Office showing
striking deficiencies in processing cases even with a diminished workload. Whether there were particular physicalcauses of the symptoms, reflected in particular cardiac or
fainting episodes at particular times, was not critical to thebasis for the identification of the complaint, though suchcauses could ultimately be relevant to determining the nature, extent, and duration of any disabilities.
The Response’s criticism of the April 7 Order, which
was the first Committee order to require medical examinations, is defective for at least the same reasons. The Response asserts that the Committee lacked a reasonablebasis for the April 7 Order, but the core argument is thatthe order, which referred to the March 24 Order and did
not further discuss the basis for concern about disability,
was infected by the same error regarding a “heart attack”
as the March 24 Order. Response 36–37 (stating that “absent these allegations, the Committee was left with nothing at all” on which to base its order for medical
examinations). But as explained, that assertion incorrectly
assigns the dispute about a “heart attack” a role contrary
to its actual role regarding the issue of disability.
In asserting that the Committee had no other basis for
its April 7 Order, the Response states that, as of April 7,
the “Committee had yet to speak to any of Judge Newman’s
staff.” Response 8. That is wrong. The March 24 Ordermakes clear on its face that, even before that Order wasentered, one of Judge Newman’s chambers staff had reported troubling conduct by Judge Newman. The R&R further explains that, after the Committee was appointed on
March 24, the Committee “immediately undertook59

IN RE COMPLAINT NO 23-90015

interviews with court staff to gather relevant information.”
R&R 12 (emphasis added). And it is apparent from the sequence of the Committee’s orders that much of the information ultimately memorialized in the form of affidavits
had been provided to the Committee in interviews long before the affidavits were executed. In addition, as the April
7 Order makes clear, the Committee had already engaged
a consulting expert (Dr.
) and relayed information
to him, and he had found the information sufficient to callfor the medical examinations the Committee was ordering.
April 7 Order at 1–2. The April 7 Order also provided Dr.
s contact information so that Judge Newman or her
representatives could ask him directly about the examinations and the selected providers. Judge Newman’s suggestion that the Order was based on “nothing” but the
disputed “heart attack” event is contrary to the record.
In any event, even if there was some error in the March
24 and April 7 Orders regarding the factual points on
which the Response focuses, it is entirely proper to requirecompliance with the May 16 Order, where, as shown above,
there are ample bases for this later-issued order independent of any such errors. An investigation is launched on initial information, the point of the investigation is to
uncover the truth, and the facts uncovered may be different
from some of the initial allegations that first raised concerns, but they may be equally or even more supportive of
the concerns. That is just what happened here regarding
concerns about disability.
We note that the Committee did not recommend, andthe Council is not considering, a misconduct charge basedon refusal to comply with the April 7 Order. Instead, theCommittee provided further explanations to Judge Newman in response to her objections, presented further information discovered in the investigation, and entered neworders that were based on a fuller record and set out

60IN RE COMPLAINT NO 23-90015

additional information in support, both regarding the medical examinations and medical records. It is the last of
those new orders, the May 16 Order, that is the subject of
the Committee’s recommendation and is now before thisCouncil.
Thus, after issuing an April 17 Order regarding medical records, the Committee entered an order on May 3 thatdetailed over several pages its reasonable basis for requiring medical examinations and certain medical records,
which included the staff concerns of memory loss, confusion, lack of focus, inability to understand and execute simple tasks that she had previously been able to perform, andagitation, paranoia, and hostile behavior. May 3 Order at
3–9. Several staff indicated that the dysfunctional behaviors began over the past 1-2 years and had increased in frequency. By the time of the May 3 Order, Judge Newman
had been provided a detailed account, based on informationfrom the investigation, of the Committee’s basis for ordering medical examinations and medical records.
Even the May 3 Order is not the one now at issue. The
Committee received objections from Judge Newman’s counsel, including that the requested medical examinations
were of unknown scope or duration and that there were no
defined limits on how the results would be used. May 10
Letter at 4. The Committee issued its May 16 Order to respond to those objections and include even more detailabout the reasonable basis for the testing (and also further
defined the required medical records and directed that they
be supplied to the neurologist, not to the Committee).
The operative May 16 Order—and whether the Committee had established a reasonable basis for that order—is all that is material for evaluating the current issue of
misconduct. Whether the record was sufficient at someearlier stage in the process does not determine the issue61

IN RE COMPLAINT NO 23-90015

before the Council concerning a new, later order. Even in
administrative law, when a new order supersedes an earlier order and only the prospective demands of the new order are at issue, the agency, to support the new order,
generally is “not limited to its prior reasons.” Departmentof Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1907–08 (2020); see also Biden v.
Texas, 142 S. Ct. 2528, 2544 (2022) (same). All the more sofor an investigation, which, in the ordinary course of pursuing its aim of uncovering the truth, will lead to changes
in the investigators’ actions according to changing information. That aspect of an investigation is particularly important for a disability investigation, in which a complaint
can be expected to set out reasons for concern about present
continuing abilities, rather than specific past-conduct“charges” to be proved in ordinary misconduct proceedings.
Here, the “misconduct” is the stymieing of an underlying
disability inquiry.
If the approach suggested in the Response were correct,
then if a special investigating committee under the Act
ever acted too swiftly in ordering some investigative step,
but responded to objections, developed further information,and then reissued its order based on a more developed record, the later order would somehow still be measured
against the more limited record available at an earlier
time. That cannot be the rule. Responding to objections
from a subject judge and establishing additional information justifying investigative steps are exactly what special investigating committees should do.
2. The Criticisms of Other Actions by the Chief
Judge or Special Committee Leading to and in
the Investigation Do Not Undermine the Duty
to Comply with the May 16 Order62

IN RE COMPLAINT NO 23-90015

The Response seeks to call into question the duty tocomply with the May 16 Order by attacking an assortmentof actions by the Chief Judge or the Committee to paint a
picture of hostility or bad faith. The Council rejects these
attacks and the whole picture.
a. The Response claims that Judge Newman was not
given the Rule 11(f) notice and opportunity to respond to
the Complaint the Chief Judge was proposing to identify
and that “had such an opportunity been provided, theMarch 24 Order could have avoided the factual errors, andthere would be no predicate for the investigation in the firstplace.” Response 90. But as the attached emails demonstrate, the Chief Judge did provide the proposed Complaint
to Judge Newman on March 17 (a week before it was eventually filed), asked her to review it, and offered to meetwith Judge Newman to discuss it. Ex. 1. Judge Newman
refused. The accusation of denial of notice and opportunity
to respond is false.
b. More generally, we find that the email communications between the Chief Judge and Judge Newman during
the period March 9 through March 24 refute the Response’s
accusation of hostility. They paint a picture of a Chief
Judge trying in a respectful manner to meet with Judge
Newman to discuss the troubling concerns that had beenraised. They reveal admiration of Judge Newman and concern for her legacy. They show a good faith effort by the
Chief Judge to pursue the judiciary’s customary means ofengaging in informal discussions when concerns about arelevant disability arise and become so strong that it is nolonger responsible to avoid the difficult topic of whether thejudge at issue should step back from the job.
In early March 2023, the information about disability
concerns was at the point where identifying a complaint tolaunch an investigation under Rule 5 was called for in63

IN RE COMPLAINT NO 23-90015

order to fulfill the clear purposes of the JC&D Act—unlessthe disability concerns were dispelled or made moot by avoluntary resolution. Judge Newman’s refusal of engagement made the launch of the formal proceeding unavoidable. The Chief Judge’s communications with Judge
Newman show no hostility or bad faith. They reflect goodfaith, and human sympathy in fulfilling a sad, painful responsibility.
c. The Response asserts that, in a slightly earlier conversation in March 2023, the Chief Judge told Judge Newman that taking senior status was “non-negotiable.”
Response 4; id. at 84. The Response itself puts quotation
marks around the term but cites no source, so it appears
not to be reporting a word used but instead to be characterizing what Judge Newman felt, or recalls, was being
conveyed. Regardless, for the Council’s decision, it is unnecessary to establish whether the word was used or even
whether the thought was conveyed. Even if so, there would
be no bad faith in indicating that the disability concerns
were so serious that taking senior status was the minimum
needed to avoid an investigation. Such a statement does
not prejudge the results of the investigation.
d. The Response attacks a decision by the Chief Judgemade in February 2023, before the events of March 2023
precipitated the current proceeding. Over three pages, theResponse argues that it was improper for the Chief Judge,
in February, to not calendar Judge Newman for the April
sitting because of the Federal Circuit rule (Clerical Procedure # 3 ¶ 15) that a judge should not be assigned to a newsitting when the judge has a backlog of assigned opinions
not circulated within a specified period. Response 80–83.
The Response’s argument is about one of the backlog cases,
which was undeniably very old and had been submitted on
the briefs without oral argument and therefore was assigned to Judge Newman (by herself) some weeks before64

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the date it appeared on the court’s calendar. The Response
prefers to start the count for the Clerical Procedure period,
not from the date of assignment, but from the later calendar date; but starting the count with the actual assignment
is obviously reasonable, not at all suggestive of bad faith.
Decisively, moreover, Judge Newman’s judicial assistant
had emailed the Chief Judge in February to state that it
looked like sitting in April was barred by the Clerical Procedure. Ex. 11. The Chief Judge followed the view communicated by Judge Newman’s chambers. When the Aprilsitting assignments were sent to all judges in mid-February, it was immediately apparent that Judge Newman was
not being assigned to sit. Yet Judge Newman never objected—just as she never objected when, in early 2021, she
stopped being put on motions panels (a regular active
judge’s duty) or when, around the start of 2022, her panel
assignments were substantially reduced in number. Thereis no basis for finding bad faith in the Chief Judge’s February 2023 assignment decision.
e. The Response suggests that hostility or bad faith isevinced in the Committee’s partial denial of an extension
request during the investigation. When the Committee issued its May 16 Order, it set a deadline of May 23 for Judge
Newman to respond—not for her to undergo the examinations or supply the records or sit for the interview. It explained the statutory bases for expedition, May 16 Orderat 24; see 28 U.S.C. § 353(c) (expedition directive for Special
Committee); id. § 352(a) (expedition directive for Chief
Judge in initial review); id. § 353(a) (promptness directive
for Chief Judge to appoint Special Committee); H.R. Rep.
96-1313 at 11, and it noted the difficulty of arranging appointments with examiners. May 16 Order at 25. On May
20, Judge Newman’s counsel asked for a 16-day extension,
explaining that he had flown to Israel on May 16 for “family
functions,” including “a traditional Jewish baby-naming65

IN RE COMPLAINT NO 23-90015

ceremony.” Dolin May 20 Letter. The Committee extended
the deadline to May 26, noting the importance of expedition
and that this was the third order concerning medical examinations. May 22 Order at 1–4. Judge Newman’s counsel
met the deadline with a three-page response, filed May 25,
refusing compliance with the May 16 Order.
The Response now observes that May 26 was “a major
Jewish festival of Shavuot (‘Festival of Weeks’),” evidently
suggesting insensitivity on the Committee’s part.
Response 18 n.15. But the Response’s suggestion of insensitivity is baseless. The extension request made no mentionof the holiday, which was unknown to the Committee. The
Committee’s partial denial of the extension properly served
the statutory expedition policy and is not evidence of hostility or bad faith.
f. The Response points to the July 13 oral argument(hearing) and declares: “It should not go unsaid that thehearing was conducted in an extraordinarily and uniquely
hostile fashion. None of the attorneys appearing at thehearing has ever before experienced such a level of hostility
and disrespect from any judge at any level of the judiciary.”
Response 20 n.16. The Council has read the transcript of
the hearing and/or listened to the audio recording. Exs. 14,
15. We conclude that this accusation is baseless. Pressing
for focus on the matters viewed by the bench as of likely
importance, and for answers actually responsive to thebench’s questions, is not reflective of hostility or disrespect,
but of the proper effort to advance understanding during
the limited time counsel has available. The Response’s accusation on this point is completely meritless, as well as
inappropriate.
g. Judge Newman claims that when her staff asked toreschedule interviews, the Committee refused. Response
10. But only one of Judge Newman’s staff asked to66IN RE COMPLAINT NO 23-90015

reschedule, and the Committee agreed to reschedule to the
day he chose. See Ex. 16.
h. The Response complains that the Committee subpoenaed Judge Newman’s career clerk to appear for a formal deposition within 48 hours, with “no reason to believe
the career clerk would decline a simple request for an interview.” Response 96. But the timing reflected the proper
effort to follow the statutory policy of expedition. And theCommittee had reason for the formality. Even before thecareer clerk’s broad refusal to answer questions at the deposition, the Committee reasonably doubted the careerclerk’s likely cooperation with the present inquiry, as the
career clerk had just been non-cooperative with EDR inquiries. See
Aff. [10] ¶¶ 1–4. Moreover, the Council sees nothing improper about the Committee’squestioning at the deposition when the career clerk repeatedly asserted the privilege against self-incrimination to refuse to provide almost any information.
i. The Response suggests bad faith or hostility in theCommittee’s response to a request for Clerk’s Office datain mid-August, after issuance of the R&R. Response 92–
94. We find that the Committee had ample reasons for refusing the request—that it was untimely, waived, and unjustified by any concrete showing of problems in thealready-furnished data that would be material to the specific issue presented, namely, whether the May 16 Orderwas justified and non-compliance with it constituted misconduct. The Council sees no bad faith or hostility in thatruling.
***In short, the Council sees no merit in the picture
painted by the Response of bad faith or hostility by the
Chief Judge or the Committee. That picture is therefore adiversion from the proper inquiry, namely, the basis for the67

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May 16 Order itself and the importance of complying with
it under the Act and Rules.
IV. The Refusal to Comply with the May 16 Order
Constituted Serious Misconduct
Judge Newman committed misconduct by refusing tocomply with the May 16 Order for medical examinations,medical records, and an interview, and her refusal to comply constituted serious misconduct. Rule 4(a)(5) expressly
provides that “[c]ognizable misconduct includes refusing,
without good cause shown, to cooperate in the investigationof a complaint.” Judge Newman’s refusal to cooperate wasa serious matter because it prevented the Committee frombeing able to fulfill its assigned task under the Act—
namely, making an informed assessment (and recommendation for the Judicial Council) about whether Judge Newman suffers from a disability.
That is a serious matter because it prevented theproper functioning of the self-policing mechanism that
Congress established to ensure that the judiciary would effectively have authority to keep its own house in order. As
relevant here, the Act creates a mechanism, important in asystem that provides judges life tenure to ensure independence, to address the unfortunate reality that some judges
may become unfit to perform the duties of their office. The
Act gives the judiciary the responsibility for regulating itself in that regard through investigations such as this. Accordingly, all judges have an obligation to cooperate withproceedings under the Act to ensure that self-policing by
the judiciary can function properly. Refusing to cooperate
without adequate justification—as Judge Newman has
done here—brings the statutory mechanism for addressing
disability to a grinding halt and thereby undermines theinterests of litigants, employees, the public, and the judiciary in having that mechanism work.

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V. The Renewable One-Year Suspension from New
Cases is an Appropriate Sanction
We find that Judge Newman’s assertion that a oneyear suspension from case assignments would be too severea sanction is misplaced. As explained in the R&R, the sanction must be sufficient to convey the seriousness of misconduct that has prevented the proper functioning of the selfpolicing mechanism Congress created for the judiciary.
And the renewable character, if circumstances continue tojustify the suspension, is essential to the purpose: to put
the Act process back in motion rather than leave it
thwarted in the face of reasonable concerns about disability.
Judge Newman’s arguments concerning Adams also
draw the wrong lessons from that case. See Response 106.
It is true that, upon remand from the JC&D Committee,
the special committee in Adams recommended only a sixmonth suspension based on Judge Adams’ misconduct inrefusing to comply with orders for medical examinations.
There, however, the JC&D Committee had just vacated theoriginal sanction imposed by the Sixth Circuit Judicial
Council because the council did not have any basis for finding that the concerns about a disability in that case affected
Judge Adams’ “capability of discharging his adjudicative
responsibilities,” and instead were “limited to Judge Adams’s conduct in the context of the court’s internal administrative responsibilities.” Adams at 37. Here, in contrast,
the evidence developed by the Committee calls into question Judge Newman’s ability to carry out the case-deciding
function at the level and with the timeliness required of anactive judge. The concerns about disability are not, as in
Adams, wholly unconnected to Judge Newman’s role in deciding cases. To the contrary, the evidence shows that paneling Judge Newman on cases without getting to thebottom of her potential disability will have a direct and deleterious effect on the efficient administration of the69

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business of the Court. In addition, in Adams, the Sixth
Circuit Judicial Council had originally decided that Judge
Adams’ misconduct (which included both refusing to comply with an order for medical examinations and a particular incident with a show cause order) warranted asuspension from new cases for two years and the reassignment of his entire docket of pending cases. See Order ofJune 27, 2018, at 2, In re Complaint of Judicial Misconduct, No. 06-13-90009 (Sixth Circuit Judicial Council).
Given the different nature of the disability concerns raisedin this case, and the extensive evidence showing their direct connection to Judge Newman’s “adjudicative responsibilities,” we conclude that a one-year suspension—in
between the original two-year sanction and the later recommended six-month sanction in Adams—is warranted.
To the extent Judge Newman points to the length ofsuspensions issued in other misconduct cases, those decisions are less relevant comparators. They involved sanctions as punishment for misconduct such as harassment
and unwanted physical advances (or crimes such as perjury
or allowing counsel to make false factual assertions in theproceeding itself). Those matters do not provide a relevantbenchmark for a case such as this involving (i) a suspecteddisability that directly affects a judge’s adjudicative responsibilities and (ii) thwarting the process for fulfillingthe duty to get to the bottom of (and address) the suspecteddisability.
Judge Newman is also incorrect in arguing that theCouncil lacks authority to suspend her from sitting on
cases en banc. See Response 113. Section 354(a)(1)(C) of
the Act says that the Council “shall take such action as isappropriate to assure the effective and expeditious administration of the business of the courts within the circuit,”and section 354(a)(2)(A)(i) gives one example in “may” language that does not exhaust the scope of the broader“shall”: the Council may order that “no further cases be70

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assigned” to a judge who has committed misconduct or who
has been found to suffer a disability. 28 U.S.C. §354(a)(1)(C), (a)(2)(A)(i). The provisions authorize the judicial council (even obligate it where appropriate to ensure
effective and expeditious judicial administration) to suspend the judge from hearing cases of any sort. The general
directive in 28 U.S.C. § 46(c) that the court en banc “shallconsist of all circuit judges in regular active service” cannot
trump that more specific authority and obligation granted
to the Council for addressing situations of misconduct ordisability. See generally, e.g., Corley v. U.S., 556 U.S. 303,316 (2009) (noting that “a more specific statute will begiven precedence over a more general one”). Judge Newman can, at any time, end this suspension, by complying
with the May 16 Order and allowing the Committee to complete its investigation.
***
The Council has considered all of Judge Newman’s remaining arguments and find them to be without merit. 26
Unanimous Judicial Council Order
The Judicial Council has unanimously determined,
based on the Committee’s R&R and underlying evidence,that there is an adequate basis for deciding whether Judge
Newman’s refusal to cooperate with the Committee’s orderfor medical evaluations, medical records, and an interview
constitutes sanctionable misconduct. See Rule 20. Afterdue consideration of these materials, the Judicial Council
FINDS:

26 The Council sees no need for oral argument in thismatter. Pursuant to Rule 20(a) Judge Newman was provided an opportunity to submit argument in writing andsubmitted a 120-page brief.

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IN RE COMPLAINT NO 23-90015(1) The evidence establishes reasonable concerns that
Judge Newman suffers from a disability preventing herfrom effectively discharging the duties of her office. In lightof the evidence, the Committee had a reasonable basis on
May 16 to require Judge Newman to undergo the specified
medical evaluations and produce the specified medical records and to request that she sit for the specified interview.
(2) The Judicial Council is being deprived of information that is important to a fully informed determination
with reasonable medical certainty of whether Judge Newman has a disability that renders her unable to effectively
discharge the duties of her office as an active judge because
she has refused to undergo the ordered medical evaluations, refused to produce relevant medical records, and refused to sit for an interview. See Rule 4(c).
(3) Judge Newman has not established good cause forher failure to cooperate with the Committee’s investigation
through her refusal to undergo the ordered testing, produce
medical records, or sit for an interview.
(4) Judge Newman’s refusal, without good cause, to cooperate with the Committee’s investigation constitutes serious misconduct, as it has prejudiced the effective andexpeditious administration of the business of the courts.
Rule 4(a)(5).
Given these findings, the Council ORDERS:(1) Judge Newman shall not be permitted to hear any
cases, at the panel or en banc level, 27 for a period of one
year beginning with the issuance of this Order, subject toconsideration of renewal if Judge Newman’s refusal to cooperate continues after that time and to consideration of

27 This includes all cases in which oral argument has

not yet occurred.

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IN RE COMPLAINT NO 23-90015

modification or rescission if justified by an end of the refusal to cooperate.
(2) The Committee shall maintain jurisdiction over thismatter.
SO ORDERED: September 20, 2023.

73

United States Court of Appeals for the Federal
CircuitUNDER SEAL (NON-PUBLIC ORDER)__________________________IN RE COMPLAINT NO. 23-90015__________________________
Before the Judicial Council of the Federal Circuit
PER CURIAM.
STATEMENT OF RIGHTS UNDER RULE 20 AND 21
Pursuant to Rule 20(f) of the Rules for Judicial-Conduct and Judicial-Disability
Proceedings, the Judicial Council notifies Judge Newman that she is entitled to aright to review of the Council’s decision as provided in Rule 21(b). The Council willtransmit the order and memoranda incorporated by reference in the order to theCommittee on Judicial Conduct and Disability for review in accordance with Rule 21.
Judge Newman may file a Petition for Review to the Committee on Judicial Conduct
and Disability. The Rules regarding the deadline and page limits for the Petition for
Review may be found in Rule 22.

Redacted Supporting
Attachments1

1

The attachments have been redacted and reordered to protect confidentiality.

Exhibit 1

From:
To:
Subject:
Date:
Attachments:

Chief Judge Kimberly A. Moore
Judge Pauline Newman
Fwd: Publication of AIPLA QJ 50-4 Anniversary Issue
Thursday, March 9, 2023 8:02:50 PM
50-4 Anniversary Issue.pdf

I hope you will take a moment to read my article in the AIPLA. I talk extensively amount how
much I respect you and what you have meant for me and our court. I recognize that you havebeen in my words the heroine of the patent system. Please let us celebrate this amazing careerand life you have lived. Think very hard about the difference you have already made topeople like me. Your legacy will not be any particular case but rather the impression you leavebehind.
With affection and admiration,
Kimberly
Get Outlook for iOS

From:
To:
Subject:
Date:

Chief Judge Kimberly A. Moore
Judge Pauline Newman
meeting
Wednesday, March 15, 2023 11:29:00 AM

Polly,
I think we should meet soon to talk. As you know, there is a process underway
and there is both an informal and a formal component to this process. I continue
to hope that you and I can reach an agreement informally. Can we set a time on
March 24 or March 29? It would be just the two of us.
Kimberly
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal CircuitFrom:
To:
Subject:
Date:

Judge Pauline Newman
Chief Judge Kimberly A. Moore
RE: meeting
Thursday, March 16, 2023 11:40:09 AM

Kimberly,
I am willing to talk. I request that you restore me to the May hearing calendar
before we meet.
Polly.

From:
To:
Subject:
Date:

Chief Judge Kimberly A. Moore
Judge Pauline Newman
RE: meeting
Thursday, March 16, 2023 12:07:00 PM

Polly,The May hearing calendar is already set. And I know you are aware, the judicial
council voted that you should not hear new cases during this process. It is myhope that you and I can meet soon to try to resolve the process. Please let meknow what day and time you prefer March 24 or March 29 or if you want to meetsooner, I will be in tomorrow March 17.
Kimberly
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal CircuitFrom:
To:
Subject:
Date:

Chief Judge Kimberly A. Moore
Judge Pauline Newman
RE: meeting
Thursday, March 16, 2023 4:43:00 PM

I understand you might be in tomorrow. I will be here. Please let me know if
you’d like to meet.
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal CircuitFrom:To:
Cc:
Subject:
Date:-Kimberly A. Moore
Judge Pauline Newman
PN
Friday, March 17, 2023 11:21:45 AM

Chief,
Judge Newman asked me to convey that she is quite busy today and must leave
early. Therefore, she does not want to be disturbed.
Kind Regards,

U.S. Court of Appeals for the Federal Circuit
717 Madison Place NW Washington, DC 20439

From:
To:
Subject:
Date:
Attachments:

Chief Judge Kimberly A. Moore
Judge Pauline Newman
CONFIDENTIAL
Friday, March 17, 2023 12:00:00 PM
JMD draft order (3.16.2023).docx

Polly,
It was my hope that we would be able to talk about this, but your refusal to agree
to a meeting or to respond to your colleagues’ calls or emails has left me with nochoice but to email you the attached order. I have not formally docketed thisorder yet. I will do so on Friday, March 24 at 9am. I wanted to give you an
opportunity to review the complaint prior to docketing it and beginning theformal process. If you wish to discuss this with me prior to the formal docketing,
I am available to do so and continue to hope that informal resolution might bepossible. Because of the sensitive nature of the document, I will send you aseparate email with the password for the document.
Kimberly
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal CircuitExhibit

3MS Manual 1996

Page 1 of 22

MANUAL FOR THE ADMINISTRATION AND SCORING OF
THE MODIFIED MINI-MENTAL STATE (3MS) TEST

(Updated May, 1996)

Evelyn Lee Teng, Ph.D., and Helena Chang Chui, M.D.
(email: eteng@usc.edu)

Department of Neurology
University of Southern California Keck School of Medicine
2025 Zonal Avenue, Los Angeles, CA

Copyrighted.

90033, U. S. A.

All rights reserved.

Do not duplicate or distribute without written permission
from Dr. Evelyn Teng.

3MS Manual 1996

Page 2 of 22

Introduction

Main differences between the 3MS and the MMSE
The Modified Mini-Mental State (3MS) test has been
designed to enhance the usefulness of the popular MiniMental State Examination (MMSE) (Folstein, Folstein, andMcHugh, 1975). Compared with the MMSE, the 3MS has more
standardized administration and more graded scoring; italso assesses a broader variety of cognitive domains andcovers a wider range of difficulty levels. The 3MS can
extract more information about the subject's cognitive
status than the MMSE; it is also more sensitive than the
MMSE in detecting within-individual changes over time (Tengand Chui, 1987).
The 3MS is not just a screening test for dementia
Neither the MMSE nor the 3MS has been designed
primarily as a screening tool for dementia. For thispurpose the 3MS Test is only marginally better than the
MMSE (Tombaugh, McDowell, Kristjansson, and Hubley, 1996);
as a matter of fact, comparable screening efficacy can beachieved with the use of a much shorter test, a shortversion of the Cognitive Abilities Screening Instrument, or
CASI-Short (Teng, Hasegawa, Homma, et al., 1994). Althoughmany of the items in the MMSE and the 3MS are not sensitivefor detecting dementia in its early stage, they are usefulfor other purposes, including that of monitoring the
progression of dementia to its middle and late stages.
This Manual contains answers to many frequently asked
questionsThis manual has been prepared after more extensive useof the 3MS by us and others since the first article on the
3MS was published (Teng and Chui, l987). In this manual wehave incorporated answers to many questions that frequently
arise during the administration and scoring of the 3MS.
Minor changes have been made from the original article.
For example: the order of asking the time and place ofbirth has been switched; the three choices for spatial
orientation have been modified. Wherever information
provided in this manual differs from that in the originalarticle, follow this manual.

Exhibit 3

From: Judge Pauline Newman
Sent: Monday, May 8, 2023 3:40 PM
To
Subject: Re: Governance and Education Travel Report (fka Non-Case Related Travel Report) Report Due May 15
since I don’t at present have a JA, by action of the Chief Judge, please advise how the court proposes to assist in handling these reporting
requirements.
PN
Sent from my iPhone1

On May 8, 2023, at 4:23 PM,

wrote:

Judge Newman,
Almost all the senior judges enter this information in Infoweb themselves and many of them do not have secretarial
support. This is a mandatory report required by all judges; only you have your information about your travel. You willneed your credentials for .Intilweh, and here are the instructions on how to enter the data. It is a very user-friendly
system. Perhaps one of your law clerks could assist you. If your staff has any questions, I'd be happy to answer them.
Best,-udge Kimberly A. Moore
U S. Court of Appeals for the Federal Circuit
717 Madison Place NW
DC204392

From: Judge Pauline Newman
Sent: Monday, May 8, 2023 5:11 PM
To:
Cc: Judge Pauline Newman
Subject: Re: Governance and Education Travel Report (flea NonCase Related Travel Report) Report Due May 15_, I do not choose to do secretarial work, whether or not any senior judges are obliged to do so. My JA routinely keeps these records and fills out these
forms for my review. It appears that the court chooses to continue to deprive me of routine services.
PN

Sent from my iPhone

3

From:
Sent: Monday, May 8, 2023 5:21 PM
To: Chief Judge Kimberly A Moore
Subject: Fwd: Governance and Education Travel Report (fka Non-case Related Travel Report) Report Due May 15
Chief,
See PN's response below.

■

4From: Chief Judge Kimberly A. Moore
Sent: Tuesday, May 9, 2023 10:21 AM
To:
Subject: HR question

Can you please check in with Judge Newman because weeks ago her requests for judicial assistance were approved? Why hasn’t
this moved forward? As I understand it:
April 19:
resigned from Judge Newman’s chambers on April 19, 2023 and asked that there be no further
communication between him and Judge Newman. He was assigned to our Clerk’s Office where he now works.
Judge Newman requested that she be permitted to bring back her former judicial assistant,, who her chambers claimed was
ready and willing to come back. As I understand it, you contacted the AO to determine how to bring backa retiredannuitant) in a manner which would not diminish her retirement annuity. I agreed to petition the AO to waive the salary set-off
thatwould face as a reemployed annuitant. This way
would receive her full retirement annuity and get paid for any
hours she worked at the court.
April 24: I understand you to have communicated the approval to bringback to Judge Newman on April 24 including thefact thatwill be brought back in a manner which allows her to keep both her full retirement annuity and get paid.
April 27 (9:43 am): I sent Judge Newman an email (copying you) which approved her request to advertise to hire a permanent
paralegal/assistant.
Given that her request for temporary assistance was approved 16 days ago (just 5 days after her assistant resigned) and that her
request to advertise for a permanent replacement was approved 13 days ago, I am confused about her below claims that either I or
the court continue to deprive her of what she refers to as secretarial services.
Can you update me on this process and reach out again to Judge Newman?
With gratitude,
Kimberly Moore
The Honorable Kimberly A. Moore
Chief JudgeU S. Court of Appeals for the Federal Circuit

5

On May 9, 2023, at 1:10 PM,

wrote:

Chief Judge Moore,
I have been in communication with Judge Newman regarding both the temporary rehire o�e recruitment for a permanent fillof the )A/paralegal position in her chambers for several weeks. I am currently at a standstill with both- rehire and the recruitment, as I
am awaiting responses/approvals from Judge Newman.
Specifically, I am waiting for Judge Newman to confirm specific details o� return and provide approval for me to begin the process of
seeking a salary offset waiver from the AO . My last email to Judge Newman regarding- was on May 3rd and I have not yet received a
response from her. - called me yesterday with HR questions specific to returning to the court as a rehired annuitant and I am expecting afollow-up email from her. I am also waiting for Judge Newman to approve the draft )A vacancy announcement for her chambers position. My
last email to her regarding this matter was on May 2nd and I have not yet received a response from her.
Below is timeline ofmy communication with Judge Newman regarding both matters. Communications in blue primarily relate to- rehire
and items in red primarily relate to the recruitment for a permanent fill
Monday, April 24, 2023
1. 2:20PM: Telephone call with Judge Newman to discuss the temporary rehire ofwhich you approved for a period ofup to 90
days, with the possibili of an extension. I also notified her of your approval to seeK a waiver of the salary offset that rehired annuitantsz
are subject to, so that
could potentiallv receive her OPM annuity as well as a full salary for time worked for the cowt Judge
Newman denied my request to reach out toto begin the rehire process and stated that I was not to contact -until the
recruitment process begins for a permanent replacement for her )A/paralegal vacancy.

2. 4 09PM: I sent a follow-u e-mail to Judge Newman shortly after our call to restate the approval to temporarily rehire- and to againpoffer to reach out to
3. 4:53PM: Judge Newman responded by email indicating that she requires a permanent as well as temporary solution to her judicial needs.
No response to my inquiry about contact_-

Tuesday, April ZS, 2023
1. 2:49PM: I responded to Judge Newman's last email and again asked if I could begin the process of bringing back- to assist her inchambers.
2. 3:53PM: Judge Newman responded by asking me to assure her that the permanent )A recruitment will be listed promptly.

Wednesday, April 26, 2023
1. 3:24PM: I responded to Judge Newman and explained that I was not in the position to guarantee the posting of the permanent position
due to the judicial council vote prohibiting her from hiring any permanent staff and again asked for permission to move forward with
2. 3:55PM: Judge Newman responded stating that the court has an obligation to provide her ·statutory judicial services· and that she
understands my email to mean that the judicial council continues to refuse to allow her )A position to be flled.

follllupi

Thursday, April 27, 2023
1. 10:25 AM: As athe email that you sent to Judge Newman at 9:43 AM, which authorized the recntitment for a permanent
replacement for
I sent an email to Judge Newman containing a draft vacancy announcement for a chambers alegal Io� begin theindicated that I wo get e announcement posted as soon as she approved it I also asked if I could reach out toprocess ofher temporary rehire.

Sunday, April 30, 2023
2. 6:35PM: fudge Newman responded to myemail asking for a copy of the vacan announcement that was used for the recruitment forher
chambers paralegal in 2021. Judge Newman also stated that she did not want g
to return as a re-employed annuitant but rather as acontractor.
Monday, May 1, 2023
1. 3:25PM: I sent Judge Newman a copy of the 2021 paralegal vacancy announcement, as requested. My email also explained the AO
procurement regulations relatea to contract employees and providecl lfi xs to tlie regillatfons. I explained that the only way fo�toreturn as a contractor would be through a temporary staffing agency contracted by the cowt

2. 7:35PM: Judge Newman emailed with a question about contracting agencies. She also expressed concern regardin� facing a sala:iy
offset as a reemployed annuitant and provided comments regarding the delay in recruiting for her permanent posi� the oral
argument paneling for July.

Tuesday, May 2, 2023

3. 9:58 AM: I responded to Judge Newman reminding her that on April 24th, I notified her that you a�ed to seek approval from the Directorof the AO to waive the salary offset for- I clearly explained again that the waiver would allow-o receive her full pension AND
salary for hours worked at the court I stated that I was "happy and ready to assist with the waiver request process."

4. 10:32 AM: Judge Newman emailed 'To be clear: Are you sapn she would receive no additional pay for working at the court?'
g would receive her full annuity (pension payment}, as well as pay for
5 10:40 AM: I wrote to Judge Newman explaining again thathours worked. I asked the judge to provide the following infomiation so that I could complete the waiver request form: 1} whether­would be full-time or part-time; 2} approximatel how many hours per week� work; and 3} the effective date of-s return.
yvould be paid for her work at the court and what would happen to her pension. She
6. 11:04 AM: Judge Newman wrote to ask if
indicated that she wantsllllllto work ·as the need arises" and that- s to be paid for days worked. She also requested to see thewaiver form.
7. 11:18 AM: I responded to Judge Newman with pay rate details, restated that there would be no effect on her pension. and indicated that-=ould work on an intermittent basis. I explained the process for reporting-s hours to HR. I also provided a draft of thewaiver form, detailed the additional information that I needed Judge Newman to provide, and provided next steps.
8. 1:27PM: Judge Newman sent an email requesting that I use a linked vacancy announcement for a JA from the DC Court ofAppeals for her
recruitment The link did not work and the announcement was no longer on the DC Court of Appeals site.
9. 2 OSPM: I emailed Judge Newman to let her know that the link was broken. I asked her to confirm that she would like to hire a )A rather
than a chambers paralegal. I provided a draft of an updated vacan announcement with the a!>J)ropriate duties and requirements for a )A
and asked her to review for posting.
10. 9:35PM: Judge Newman responded inquiring again wbethe�·s pension annuig:-;ould be affected and whether she would be
separate aid er time worked at the cowt Judge NewmanTsm about how
ould be paid for hours worked at the court,
whether ly p
ould be eligible for travel reimbursement and if there was any additional information the judge needed to know.

6

Wednesday, May 3, 2023
1. 9:13 AM: I responded to Judge Newman with assurance that. if approved by the AO,.'s annuity payments will continue
uninterrupted and that in addition to her annuity she will also receive a separate paymen for her earnin fo whatever hours she works
�for the judge. I further explained the method and timing of payments and notified Judge Newman that r ·s not eligible for travel
reimbursement

Monday, May 8, 2023
2. 4:22 PM: I spoke with- by phone, returning a voice mail that she left for me at 3:30 PM. - had a number of questions regarding
the effect on her pay an enefits of returning as a rehired annuitant I provided answers to tlie questions I was able to and promised tofollow-up with answers to those questions that required more research. -tated that she would prefer to have all of the answers inwriting and said that she would send me an email with all of her questions.

-

Please let me know if you have any questions.

Thanks,----Human Resources
U.S. Court of A
als for the Federal Circuitpr7

From: Judge Pauline Newman
Sent: Tuesday, May 9, 2023 1:42 PM
To
Cc: Chief Judge Kimberly A. Moore
Subject: Re: HR question
Thank you,
I have been awaiting word that Judge Moore has approved the hiring of a permanent JA on posting of that opening. If I missed receipt of notice of suchapproval, please resend.
PN
Sent from my iPhone

8

From:
Sent: Tuesday, May 9, 2023 2:38 PM
To: Judge Pauline Newman
Cc: Chief Judge Kimberly A. Moore
Subject: RE: HR question

Hi Judge Newman,
The Chief gave approval to recruit for the permanent refill of your JA/paralegal position on April 27th. Please see the email attached from the Chief at
9:43AM on that date where she states that “HR will begin the process of posting for a replacement. “ Shortly after the Chief’s email, I followed-up with anemail sent directly to you on the same date at 10:23 AM (also attached) letting you know that in light of the Chief’s approval I was sending along a draft
vacancy announcement for your review/approval and that once the announcement was finalized I would post it publicly.
After the two emails attached and referenced above, you and I exchanged several emails regarding the announcement (highlighted below). The last emailin this exchange is an email I sent to you on May 2nd, in which I attached a draft announcement for a JA rather than a paralegal and asked that you review
and approve so that I could move forward and post it.

Assistant Circuit Executive for Human Resources
U.S. Court of Appeals for the Federal Circuit

9

From: Judge Pauline Newman
Sent: Tuesday, May 9, 2023 3:48 PM
To:
Chief Judge Kimberly A. Moore
Cc: Judge Pauline Newman
Subject: RE: Judicial assistant and law clerk positions

Yes indeed; this was the reason for my uncertainty. Authorizing “beginning the process of posting” is not the same as authorizing hiring the
replacement. I ask Judge Moore to confirm that she authorizes hiring the replacement, not just beginning the process of posting.
Similarly, I ask Judge Moore to confirm that there are no obstacles to my proceeding with hiring a fourth law clerk.
PN

10

From:
To:
Subject:
Date:
Attachments:

Chief Judge Kimberly A. Moore; Judge Pauline Newman
RE: Judicial assistant and law clerk positions
Tuesday, May 9, 2023 8:40:17 PM
image001.png
image002.png

Judge Newman:
There has been nothing uncertain or ambiguous in the communications with you concerning hiring a permanent replacement for your JA/paralegal On April 27,
2023, emails both from me and frommade clear that I had authorized hiring a permanent replacement The only reason that process has not moved
forward is that you have failed to approve any of the versions of the vacancy announcement thathas transmitted for your review
Specifically, in an email at 9:43 am on April 27, I asked you to accept the court’s repeated offer to bring in a temporary assistant and also explained that HR would
begin the process of posting for a permanent replacement Posting for a replacement necessarily indicates that hiring has been authorized, it makes no sense tosuggest that the court has authorized you to publicly advertise that you are hiring for a vacant position if there is not, in fact, authority to hire for that position Less
than an hour after my email, at 10:25 am,
sent you an email with a draft of the vacancy announcement Her email made it clear that the full hiring process had
been authorized as she anticipated later steps in the process and asked you how you would like to receive the packages for qualified applicants
On Sunday April 30, 2023, at 6:35 pm you responded to
You did not raise any concern that there was some uncertainty as to whether hiring a permanent
replacement had actually been authorized Instead, you asked for a copy of the vacancy announcement that had been used to recruit a paralegal for your chambers in
2021 In several further email exchanges withyou went back and forth over the draft vacancy announcement until
informed you by email of May 2, 2023
at 2:05 pm that a link you had sent her (showing a vacancy announcement at the D C Court of Appeals) was not working
included an updated draft of thevacancy announcement and asked you to approve it for posting You failed to respond to that request andwas unable to move forward
has repeatedlysought approval from you to move forward with the temporary service your requested and the permanent service you requested Any failure to acquire these services
for you is due to your failure to authorize
to move forward
If you wish to hire a permanent JA/paralegal, please review and approve the vacancy posting that
Kimberly Moore
Kimberly A. Moore
Chief JudgeU S. Court of Appeals for the Federal Circuit

11

has sent to you

Exhibit 4

From:To:
Cc:
Subject:
Date:

Chief Judge Kimberly A. Moore

FW:
Wednesday, April 19, 2023 3:48:00 PM

Effective immediately,
is no longer an employee of the Newman
chambers. He will no longer answer Judge Newman chambers phone lines orremainshave access the chambers Y drive or receive emails to -PN.
available to assist with matters of transition and has prepared a transition memo
which will be sent to chambers by. There should be no directcommunication from any member of the Newman chambers including the judge to. All communication withfrom any member of the Newman chambers
whether by email, phone, teams or otherwise should be directed exclusively to
who will them relay the information to.
Kimberly Moore
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

1

Exhibit 5

Judge Pauline Newman
Wednesday, April 19, 2023 4:29 PM
Chief Jud e Kimberly A. Moore

From:
Sent:

To:
Cc:
Subject:

I agree that this is appropriate. Please prodess- departure expeditiously.
Sent from my iPhoneOn Apr 19, 2023, at 3:49 PM, Chief Judge Kimberly A. Moore

wrote:

Effective immediately,
has resigned from the Newman
chambers. - has asked that no person in the Newman chambers including the�should communicate with him in any manner. I instruct the chambers thatrsonal- request for no contact must be followed. - has removed his
items from the Newman chambers. IT has been instructed to remove
accessto the chambers Y clTive and from the -PN dist1·ibution list.
Kimberly Moore

The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

1

Exhibit 6

From: Chief Judge Kimberly A. Moore
Sent: Tuesday, April 4, 2023 5:37 PM
To: Judge Pauline Newman
Subject:

Judge Newman,
A concern by a member of your staff has been brought to my attention.
I understand that your law clerk
has been contacting yourparalegal in the middle of the night to perform some work-related andsome personal tasks for her. I further understand that he has let
know that he does not wish to be contacted outside of business hours
except by you in the case of an emergency. It is not clear to me howmuch you know about these inappropriate contacts so I am callingthem to your attention as
supervisor to ensure that thisuncomfortable situation does not continue. Can you please confirm
receipt of this message?
Kimberly Moore
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

1

From: Judge Pauline Newman
Sent: Wednesday, April 5, 2023 3:46 PM
To: Chief Judge Kimberly A. Moore
Cc:

Subject: June Calendar

To Chief Judge Moore,
Yesterday’s notice of the June appeal paneling again excludes me from the entire
June hearing calendar, despite my request. Please correct this action...
Judge Newman

2From: Chief Judge Kimberly A. Moore
Sent: Wednesday, April 5, 2023 4:05 PM
To: Judge Pauline Newman
Cc: Judge Sharon Prost
Judge Richard G. Taranto
Judge Todd Hughes
Judge Timothy B.
Dyk; Judge Kara Stoll; Judge Alan D. Lourie; Judge Tiffany P. Cunningham
Judge Raymond Chen
Judge Jimmie Reyna
Leonard P. Stark
Subject: RE: June Calendar

Judge Newman,
I am not certain why you would send this email to all law clerks and court staff.
Given the sensitive nature of the issues involved, I am sending this response only
to the members of the court’s judicial council. You have already been informedthat the judicial council voted unanimously not to assign you to sit on any newcases pending the results of the investigation into potential disability/misconduct
identified in the order which you have been given. As you know, consistent withthe rules, a special committee was appointed and that investigation is ongoing.
To be clear, you will not be assigned any new cases until these proceedings areresolved.
Kimberly Moore
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

3

From: Chief Judge Kimberly A. Moore
Sent: Wednesday, April 5, 2023 4:12:37 PM
To: Judge Pauline Newman
Subject: RE:

Judge Newman,
Since I received an email from you a few minutes ago, I know you are on email.
Yet, you did not acknowledge receiving the below email which identifies an EDR
matter related to inappropriate conduct by one of your staff towards another staff
member. Please let me know that you will address the alleged inappropriate
conduct byotherwise I need to do so. I have been advised that I
should make certain that you appreciate thatshould suffer no adverse
consequences for having come forward.
Kimberly Moore
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit4

From: Judge Pauline Newman <Sent: Wednesday, April 5, 2023 7:19:29 PM
To: Chief Judge Kimberly A. Moore
Cc: Subject: Re:>>

Judge Moore,
Since you have not responded to my request, I assume you refuse to restore my service as a judge ofthe court. This is more significant than a phone call to a member of my chambers staff.
Judge Newman

Sent from my iPhoneOn Apr 5, 2023, at 4:12 PM, Chief Judge Kimberly A. Moore
wrote:

Judge Newman,
Since I received an email from you a few minutes ago, I know you areon email. Yet, you did not acknowledge receiving the below email
which identifies an EDR matter related to inappropriate conduct by
one of your staff towards another staff member. Please let me knowthat you will address the alleged inappropriate conduct byotherwise I need to do so. I have been advised that I should makecertain that you appreciate thatshould suffer no adverse
consequences for having come forward.
Kimberly Moore
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

From: Chief Judge Kimberly A. Moore
Sent: Tuesday, April 4, 2023 5:37 PM

5

To: Judge Pauline Newman
Subject:

Judge Newman,
A concern by a member of your staff has been brought to my attention.
I understand that your law clerk
has been contacting yourparalegal in the middle of the night to perform some work-related andsome personal tasks for her. I further understand that he has let
know that he does not wish to be contacted outside of business hours
except by you in the case of an emergency. It is not clear to me howmuch you know about these inappropriate contacts so I am callingthem to your attention ass supervisor to ensure that thisuncomfortable situation does not continue. Can you please confirm
receipt of this message?
Kimberly Moore
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

6

Exhibit 7

From:
Sent:
To:
Cc:
Subject:

Judge Pauline Newman
Thursday, April 27, 2023 5:25 PM
Chief Judge Kimberly A. Moore
Re: Support services

Judge Moore,
I never released my paralegal
from my chambers staff. His movement to your staff, without consultation
with me, violates his confidentiality and other obligations to me.
Nor have I released my law clerk. I observe that he is now listed as “law clerk— chambers of” This was not cleared with me, and I was never notified of this move, again in violation of the confidentiality of
my chambers, and in violation of my right to law clerk services.
Judge Newman

Sent from my iPhoneOn Apr 27, 2023, at 9:43 AM, Chief Judge Kimberly A. Moore

wrote:

Judge Newman,
Your paralegal ceased to be a member of your chambers staff on April 19, 2023 and the circumstances
surrounding this are, as you know, a matter of on‐going proceedings.
You requested to bring in a temporary assistant (you indicated that your prior assistantwaswilling). This was approved days ago and our HR
has repeatedly tried to process her return but
you have refused to allow her to proceed. If there is delay in processing your cases due to not having
an assistant (despite having three law clerks) that could have been cured by your permitting HR toproceed to bring back your prior assistant‐which was repeatedly offered to you.
Given that you refuse to bring in exactly the temporary assistant services you requested unless the court
posts an advertisement for a permanent position, and are using your lack of assistant support as an
excuse for further delays in processing cases please accept the court’s repeated offer to bring in a
temporary assistant and our HR team will also begin the process of posting for a replacement.
Kimberly Moore

Get Outlook for iOS

1

Exhibit 8

From:
Sent: Thursday, April 27, 2023 8:23
To: Judge Pauline Newman
Cc: Greg.Dolin@ncla.legal; mark.chenoweth@ncla.legal
Subject: RE: CONFIDENTIAL: Follow‐up

Judge Newman,
Respectfully, I have not withheld any information from your counsel and stand by what I statedin the below email. As I previously explained to you by email on April 24, 2023, your concerns
about staffing for your chambers need to be addressed to the Judicial Council and not me. I was
not involved in the decision concerning the removal of staff from your chambers or the questionof whether to fill the vacancy. Your request for expansion of services by the Clerk’s Office—namely direct secretarial support and assistance with editing and preparing opinions—is outsideof the scope of our authority or services we provide to any other judge of this court. Accordingly,
I promptly referred your request to Chief Judge Moore, who responded to you the sameday. Absent a contrary direction from either the Chief Judge or the Judicial Council, I cannot
proceed and so again, I request that you direct your concerns to them.
The Clerk’s Office remains available to provide the same services to you that we provide to any
other chambers, which we have done so since the beginning of this matter. Specifically, we havecontinued to provide you with IT support and assistance; full access to existing communicationand network systems; and the processing of judicial directions from you and your chambers,
including promptly issuing an opinion on your behalf earlier this week. Once you alerted me tothe issue of a removed desktop from your chambers, I attempted to clarify for you what
happened; explained that the movement of the desktop from your chambers was standard policy
when a staff member changes desks; explained that even with the movement of the desktop
there was no chambers information on the device as all of your chambers records were saved toand available on your private chambers network drive; and directed the prompt restoration of adesktop to your chambers, which has since happened. I explained this all to you over several
email exchanges ending on April 25, 2023.
You have my consent to share our several email exchanges with your counsel.
Regards,

Chief Deputy Clerk, Clerk’s Office
U.S. Court of Appeals for the Federal Circuit| www.cafc.uscourts.gov
1

From: Judge Pauline Newman
Sent: Wednesday, April 26, 2023 17:40
To:
Cc: Greg.Dolin@ncla.legal; mark.chenoweth@ncla.legal
Subject: Re: CONFIDENTIAL: Follow‐up, you have withheld from my counsel the information that you refused to permit filling the paralegal/secretarial
position in my chambers, unlike all the other judges. My judicial activity is highly prejudiced.
Judge Newman

Sent from my iPhoneOn Apr 25, 2023, at 10:52 AM,

wrote:

Mr. Dolin,Thank you for speaking with me by phone moments ago.
Appearance and Admission. Since my earlier message to Judge Newman, theJudicial Council has waived the need for formal entry of appearance. Because you
clarified that you are now lead counsel on this matter and a member of the Federal
Circuit bar, this is moot anyway. We do not require any separate filing on thispoint.
Service and Filing. In order to expedite the receipt by you and the Judicial
Council of all matters and avoid the need for paper delivery and service, we agreed
to the following process.
1. If needed, any future filings with the judicial council on this matter can beemailed to me at this address. Please send anything in PDF format
encrypted using the same password we agreed to by telephone.

2. I will serve any orders and items from the judicial council or the special

committee to you, Mr. Chenoweth, and Judge Newman by email in the sameformat, again using the same password.

Copy of Current Orders. I will transmit by email to you today all orders alreadyentered in this matter. The files will be encrypted with the same password.
Access to Court Resources. While on the phone, you asked for clarification on
Judge Newman’s ability to access her chambers materials and issue opinions. I
2

clarified that Judge Newman has continued and continues to have full access to herchambers materials and the ability to transmit opinions to the Clerk’s Office forissuance. I noted that I separately clarified this issue for Judge Newman by email
earlier today. The Clerk’s Office remains available to provide the same technicalassistance and support for Judge Newman that we currently provide to all of theother judges of the court.
Please let me know if I can clarify anything else. My direct dial and mobile number
are below as well if you need to reach me.
Regards,

Chief Deputy Clerk, Clerk’s Office
U.S. Court of Appeals for the Federal Circuit| www.cafc.uscourts.gov

3

Exhibit 9

From:
Sent:

To:

Cc:
Subject:

Judge Pauline Newman
Thursday, July 6, 2023 10:23 AM
Chief Judge Kimberly A. Moore
Return of my chambers computer

Chief Judge Moore,
I once more request the return of my chambers computer, with my stored information . It isapparently being withheld at your instruction, for my requests have all been rejected. Please
instruct the immediate return of the computer that was taken from my chambers.
Judge Newman
Sent from my iPhone

1

Sent:
To:

Chief Judge Kimberly A. Moore
Thursday, July 6, 2023 11 :49 AM
Judge Pauline Newman

Subject:

RE: Return of my chambers computer

From:

Cc:

[Director of IT; Help Desk Manager; Clerkof Court]

Judge Newman,
It is my understanding that you have raised repeatedly the concern that when
resigned from your chambers his computer had your stored information on it. Our Clerk of
Court,, and our IT Department, all of whom are copied here, have explained toresigned any of your chamber's information that had been
you multiple times that whenstored locally on his computer was uploaded to your chambers y drive and that his computer's
access to your y drive was immediately disabled by our IT staff. I have been informed that our
Clerk of Court and our IT Department have both examined
computer on multiple
occasions and confirmed that there is none of your stored information on his computer and that
his computer has no access to your y drive. I have further been informed that they havecommunicated this to you repeatedly by email. I copy them on this so that they may confirm yetagain, as you have been repeatedly told, that there is no computer with your stored information
being withheld from you.
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

2

From:
Sent:
To:
Cc:
Subject:[Clerk of Court]
Thursday, July 6, 2023 11:58 AM
Chief Judge Kimberly A Moore; Judge Pauline Newman[Director of IT; Help Desk Manager]
RE: Return of my chambers computer

Chief Judge Moore and Judge Newman,
I can confirm both that based on my personal knowledge this response is accurate and that there
is no computer with Judge Newman's stored information being withheld.
Sincerely,

Circuit Executive and Oerk of Court
U.S. Court of Appeals for the Federal Circuit(direct) I(mobile) I www.,_cafc.uscourts.gov

3From:- [Director of IT]

Sent:
To:

Thursday, July 6, 2023 12:11 PM
Chief Judge Kimberly A. Moore; Judge Pauline Newman

Subject:

RE: Return of my chambers computer

Cc:[Help Desk Manager; Clerk of Court]

Good afternoon,
has no access to Judge Newman's shared drive nor has any of Judge
I can confirm
Newman's data stored locally on his PC.
Thanks- [Director of IT]

4

From:
Sent
To:
Cc:

Subject:[Help Desk Manager]
Thursday, July 6, 2023 12:23 PM
Chief Judge Kimberly A. Moore; Judge Pauline Newman[Director of IT; Clerk of Court]
RE: Return of my chambers computer

Chief Judge Moore and Judge Newman,
I can confirm
has no access to Judge Newman's shared drive nor has any of Judge
Newman's data files stored locally on his PC.
Thanks[Help Desk Manager]

5

From:
Sent:

To:

Cc:

Subject

Judge Pauline Newman
Thursday, July 6, 2023 4:52 PM[Help Desk Manager]
Chief Judge Kimberly A. Moore;
Re: Return of my chambers computer[Director of IT;
Clerk of Court]

Who has my chambers computer and its drive containing my files? Whoever has it, please returnit immediately.
Judge Newman
Sent from my iPhone

6

From:
Sent:

To:
Cc:

Subject:

Judge Pauline Newman
Thursday, July 6, 2023 5:06 PM
Chief Judge Kimberly A. Moore
Re: Return of my chambers computer[Director of IT; Help Desk Manager;
Clerk of Court]

I again request that the computer drive containing my information be immediately returned tome.
Judge Newman
Sent from my iPhone

7

From:
Sent:

To:

Cc:
Subject:

Chief Judge Kimberly A. Moore
Thursday, July 6, 2023 6:00 PM
Judge Pauline Newman
RE: Return of my chambers computer[Dfrector of IT; Help Desk Manager;
Clerk of Court]

Judge Newman,
I again refer this to our IT Department. But given that they have told you many times now that
there is no computer/computer drive containing your information which is being withheld fromyou, I am not sure what it is that you expect them to do. They have repeatedly told you that all
your information is on your y drive, not stored locally on some other computer drive outside yourchambers. IT can you please respond to this email from Judge Newman?
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

8

From:
Sent:
To:
Cc:
Subject:[Director of IT]
Thursday, July 6, 2023 7:12 PM
Judge Pauline Newman
Chief Judge Kimberly A. Moore;
Re: Return of my chambers computer[Help DeskManager; Clerk of
Court]

Judge Newman,
We have checked, double checked and tripled checked and there is no data on any local computeror drive that belongs to you. All of your data is on the Newman share. There is absolutely
nothing to give you. Again all of your data is on the Newman share.
Thanks- [Director of IT]

Sent from my iPhone

9

From:
Sent:
To:
Cc:
Subject:

Judge Pauline Newman
Thursday, July 6, 2023 9:54 PM
Chief Judge Kimberly A Moore
Re: Return of my chambers computer[Director of IT; Help Desk Manager;
Clerk of Court]

Judge Moore,
Correction. My chambers computer was removed and has not been returned, despite myfrequent requests. I require its return.
Judge Newman

Sent from my iPhone

10

To:

Chief Judge Kimberly A. Moore
Friday, July 7, 2023 8:24 AM
Judge Pauline Newman

Cc:
Subject:

RE: Return of my chambers computer

From:

Sent:

[Director of IT; Help Desk Manager;
Clerk of Court]

Judge Newman,
I have been informed by IT and our Clerk of Court that the following information has beencommunicated to you no less than a dozen times in writing by at least three different individuals:, our Head of IT Help Desk,, and our Clerk of Court,
our Director of IT,. Each of w horn is copied on this email. I shall nonetheless request that they's computer
again explain to you what I understand they have told you repeatedly.
contains no Newman chambers information; it contains only his Clerk's Office work, his work
calendar, his work email, etc. As the many emails sent to you by our IT personnel and Clerk of
Court state there is no computer with your information which is being withheld from you.
Because no such computer exists, there is nothing that IT could return to you. I ask that our
staff confirm this for you yet again, which I hope will resolve your concerns.
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Fede1·al Circuit

11

From:
Sent
To:

Cc:
Subject[Director of IT]

Friday, July 7, 2023 9:00 AM
Judge Pauline Newman[Help Desk
; Chief Judge Kimberly A. Moore Manager; Clerk of
Court]
RE: Return of my chambers computer

Judge Newman,
I checked again yesterday and no Newman Chambers files reside ons PC. There isnothing to return to you as we have informed you previously that all Newman Chambers files
were moved to the Newman Share when- moved down to the Clerk's Office. -•s PC has
been scanned on multiple occasions to confirm that no Newman Chambers files reside on his
local PC.
Thanks- [Director of IT]

12

From:

Sent

To:

Cc:
subject:

Judge Pauline Newman
Friday, July 7, 2023 10:43 AM[Director of IT][Help Desk

• Chief Judge Ki mberty A. Moore Manager; Clerk of
Court]
Re: Return of my chambers computer

I require return of the computer and its contents as were in my chambers. Their removal
without my knowledge and authorization, have never been explained. Nor did you (or anyone)
ask for permission to review the contents and decide what I could keep, as you now tell me wasdone.
Please return my chambers computer and its contents, as they were when you took them.
Judge Newman

Sent from my iPhone

13

From:
Sent
To:

Judge Pauline Newman
Friday, July 7, 2023 12:16 PM
Chief Judge Kimberly A. Moore

Subject:

Re: Return of my chambers computer

Cc:[Director of IT; Help Desk Manager;
Clerk of Court]

Judge Moore,
I have n o interest i n-•s computer. I request the return of my computer an d its contents. If
it has been destroyed, please advise who authorized the destruction, an d why.
Judge Newman
Sent from my iPhone

14

- [Clerk of Court]
Friday, July 7, 2023 12:34 PM
Judge Pauline Newman;- [Director of IT]• Chief Judge Kimberly A. Moore [Help Desk Manager]
RE: Return of my chambers computer

From:
Sent:
To:
Cc:
Subject:

Judge Newman,
Respectfully, I must disagree that this matter has never been explained to you. I personallyhave attempted to explain this to you in several email communications. I will again attempt todo so here. Computers are assigned to individuals and not specific chambers orindividuals. This has been court policy for many years. When chambers staff leave chambers,
their computers are removed, and a new computer is put in it for the new replacing staff
member. This has been the practice for any staff of yours who have left your chambers. Because
this is a court wide policy, IT staff never asks permission and simply follows the standing policy.
-•s transition memorandum to you explained how he handled his files and made sure thatany chambers records were on your network drive not his desktop. On multiple occasions, he has
explained to me that his practice was to never save any chambers records on his desktop andonly saved them on your chambers network drive. As an extra precaution and in response to
your expressed concerns, our IT staff made sure to confirm that none of your records were on his
desktop. At no point did any court staff "decide what [you] could keep" or look at any files as you
allege. As one of the people involved in the process, I can confirm that we merely confirmed that
there were no files remaining on his desktop and that he could no longer access any of yourchambers records after he was no longer working in your chambers.
I will also note that I previously offered to have you or a member of your staff personally inspect_.s desktop to confirm the above but this offer was declined.
While I understand your frustration with the situation, my staff and I are at a loss since, as-noted, there are no files that can be returned. Moreover, we have offered repeatedly toassist you with locating any files you cannot find or access. However, through our many
conversations, we have yet to learn of any file or record of your chambers that is actually missingor unavailable. If you or a member of your staff identifies such an item, our staff will gladly
work with you to locate it.

-

Sincerely,

Circuit Executive and Clerk of Court
U.S. Colrt of Appeals for the Federal Circuit(direct) I(mobile) I www.cafc.uscourts.gov

15

t

From:
Sent:

To:

Cc:

Subject[Clerk of Court]
Friday, July 7, 2023 12:35 PM
Judge Pauline Newman; Chief Judge Kimberly A. Moore[Director of IT; Help Desk Manager]
RE: Return of my chambers computer

Judge Newman,-

I'm confused. What computer was removed beyond•s?

Circuit Executive and Clerk of Court
U.S. Court of Appeals for the Federal Circuit(drect) I(mobile) I �.cafc,uscourts.gov

16

From:
Sent
To:
Cc:

Subject:

Judge Pauline Newman
Friday, July 7, 2023 1:56 PM- [Clerk of Court][Director of IT; Help
Chief Judge Kimberly A Moore
Desk
Manager]
Re: Return of my chambers computer

My main chambers computer contains opinion drafts, forms, records, correspondence, and decades of stored andarchived material. I cannot believe that all this is routinel y destroyed whenever a JA is replaced, and without a word to
the judge that the draft s, records, correspondence, and all other stored material must be destroyed without notice. Are
you stating that this is the court's policy?
Judge Newman

Sent from my iPhone

17

From:
Sent:
To:
Cc:
Subject:- [Clerk of Court]
Friday, July 7, 2023 2:20 PM
Judge Paufine Newman[Director of IT; Help
• Chief Judge Kimberly A. Moore
Desk Manager]
Re: Return of my chambers computer

Judge Newman,
That is not the policy and not at all what I have been saying for weeks.
Every chambers stores those items on their network drives which a re accessible to every computer in thatchambers. The items you describe are located on your network drive.

-

Our policy and practice predates my arrival of at least seven years ago. In just my time at the court, we have neverreceived such inquiries or complaints from any other chambers, including yours, whenever a law clerk or staff member
turns over. As such, I remain at a loss as to what the actual is with file access in your chambers.

Circuit Executive and Clerk of Court
U.S. Court of Appeals for the Federal Circt.it

18

From:
Sent
To:
Cc:
Subject

Judge Pauline Newman
Friday, July 7, 2023 2:54 PM-- [Clerk of Court][Director of IT; Help
; Ch•1e f J ud ge K"1m ber Iy A. Moore
Desk Manager]
Re: Return of my chambers computer

When- left he took the chambers computer and the chambers telephone. After my complaints the telephone was
eventually returned-although it took several days. The computer has never been returned .
If no other chambers has ever complained about removal of their equipment and information, as you say, then no otherchambers has been so improperly treated.
Again, I require return of my computer with its drive and content as removed from my chambers.
Judge Newman

Sent from my iPhone

19

From:

Sent:

To:
Cc:

Subject:l

I[Clerk of Court]
Friday, July 7, 2023 3:13 PM
Judge Pauline Newman[Director of IT; Help
; Chief Judge Kimberly A. Moore
Desk Manager]
Re: Return of my chambers computer

Judge Newman,
Respectfully, your characterization is contrary to what I and staff have done and experienced in attempting to resolve
this matter.
Because no content was ever removed from your chambers and the physical computer was moved per existing policy, I
am denying this request as contrary to court policy and consider this matter closed until I am otherwise directed by the
Judicial Council.

-

Sincerely,

Circuit Executive and Cieri< of Court
U.S. Court of Appeals for the Federal Circuit

20

From:

Sent:

To:
Cc:

Subject:

Judge Pauline Newman
Friday, July 7, 2023 3:44 PM[Clerk of Court][Director of IT; Help
; Chief Judge Kimberly A. Moore
Desk Manager]
Re: Return of my chambers computer

To be clear: your position is that if is "contrary to court policy" to return the computer and its drive containing mychambers information?
Judge Newman
Sent from my iPhone

21

From:
Sent
To:
Cc
Subject[Clerk of Court]

Friday, July 7, 2023 4:08 PM
Judge Pauline Newman

elp; Chief Judge Kimbertj A. Moore::�] H::��
g:i:
Re: Return of my chambers computercJudge Newman,
I am at a loss for how different a way I can again explain what I have explained to you repeatedly for months.
Your files are on your network drive. You have access to everything. The computer contains none of your information
and we are in possession of nothing of yours that can be returned. Everything was done by court policy. No one on staff
has treated you differently or incon sistent with long standing policy. There is nothing left that either I or my staff can doto assist you with accomplishing this factual impossibility you seek.

-

Circuit Executive and Cieri< of Court
U.S. Court of Appeals for the Federal Circuit

22

From:

Sent
To:
Cc:

Subject:

Judge Pauline Newman
Friday, July 7, 2023 4:22 PM- [Clerk of Court][Director of IT; Help

• Chief Judge Kimberly A. Moore
Desk Manager]
Re: Return of my chambers computer

I seek the return of the computer and drive containing decades of my work and my information. It was taken from mychambers and has not been returned. You do not have authority to decide what portion of my stored information
should be available to me.

Sent from my iPhone

23

From:
Sent:
To:
Cc:
Subject:[Clerk of Court]
Friday, July 7, 2023 4:24 PM
Judge Pauline Newman[Director of IT; Help

• Chief Judge Kimberly A. Moore
Desk Manager]
Re: Return of my chambers computer-

Judge Newman,
I refer you to our prior email exchanges on this topic. You continue to have access to all of your chambers records.

Circuit Executive and a erk of Col.Wt
U.S. Court of Appeals for the Federal Circuit

24

From:
Sent:

To:

Cc:
Subject

Judge Pauline Newman
Friday, July 7, 2023 4:29 PM

i.- [Clerk of Court][Director of IT; Help

• Chief Judge Kimberly A. Moore
Desk Manager]
Re: Return of my chambers comput er

That is incorrect.

Sent from my iPhone

25

From:
Sent
To:
Cc:
Subject:- [Clerk of Court]
Friday, July 7, 2023 4:32 PM
Judge Paulin e Newman[Director of IT; Help

• Chief Judge Kimberly A. Moore Desk Manager]
Re: Retu rn of my chambers computer

Please let us know what you cannot locate. Our staff is availabl e and willing to assist you.
Circuit Executive and Clerk of Court
U.S. Court of Appeals for the Federal Circuit

26

From:
Sent:
To:
Cc:

Subject:

Judge Pauline Newman
Friday, July 7, 2023 4:44 PM[Clerk of Court]; Chief Judge Kimberly A. Moore [Director of IT; Help
Desk Manager]
Re: Return of my chambers computer,
Where is the drive of my removed computer? Please return it immediately, with its contents as it was removed.
Judge Newman

Sent from my iPhone

27

From:

Sent:
To:
Cc:

Subject:[Clerk of Court]

Friday, July 7, 2023 4:50 PM
Judge Pauline Newman• Chief Judge Kimberly A. Moore [Director of IT; Help
Desk Manager]
Re: Return of my chambers computer-

Judge Newman,
No drive with any contents was removed from your computer. There is nothing for us to return.

Circuit Executive and Cieri< of Court
U.S. Court of Appeals for 1he Federal Circuit

28

From:
Sent:
To:
Cc:

Subject

Judge Pauline Newman
Friday, July 7, 2023 5:13 PM

11111111111111 [Clerk of Court][Director of IT; Help

Chief Judge Kimberly A. Moore
Desk Manager]
Re: Return of my chambers computer- [Clerk of Court]

As you well know, the entire computer, drive and all, were removed from my chambers.
Your clever dissembling is shameful.

A court is supposed to rep resent justice, not trickery.
Judge Newman

Sent from my iPhone

29

Exhibit 10

Regina Carney, M.D.
1870 SW 52nd Terrace
Plantation, FL 33317
615-636-5792
Independent Medical Examination
In the Matter of: Judge Pauline Newman
Introduction and Reason for Evaluation and Opinion
My name is Dr. Regina Carney. I am an adult forensic psychiatrist employed full-time by the Miami
Veteran’s Administration Medical Center, and working independently as a consultant on legal cases
involving individuals with known or suspected psychiatric conditions. My credentials are more fully
described on the curriculum vitae attached hereto as Exhibit 1 I have published the articles and chapters
listed on Exhibit “A” hereto, focusing on cognitive disorders including Alzheimer’s Disease and otherdementias. I have testified as an expert witness during the past 4 years at trial or at deposition in the caselisted in Exhibit 1.
I received my B.S. degree in biology from Duke University and my M.D. from Stony Brook University
Medical Center in New York. I completed my residency in General Psychiatry at Vanderbilt University
Medical Center in Nashville, Tennessee and completed a fellowship in forensic psychiatry at the Universityof Miami Miller School of Medicine in Miami, Florida. Previously, I served in the following positions: 1)
Inpatient Staff Psychiatrist for the Mental Health and Behavioral Science Service at the Bruce W. Carter
VA Medical Center; 2) Supervising Attending Physician for the Adult Outpatient Psychiatry Clinic at the
University of Miami Miller School of Medicine; 3) Medical Director for the Miami Dade Forensic
Alternative Center at the University of Miami Miller School of Medicine; and 4) Assistant Professor at the
University of Miami Miller School of Medicine.
I am board-certified in both Adult Psychiatry and Forensic Psychiatry by the American Board of Psychiatry
and Neurology. Attached as Exhibit A is my current CV. Dr. Gregory Dolin, a Senior Litigation Counsel with
the New Civil Liberties Alliance and an attorney for Judge Newman, retained me to review and evaluate
Judge Pauline Newman, a 96-year-old Judge in the Federal Circuit Court of Appeals, who lives in
Washington, D.C. The fees for my services are borne by Judge Newman and not NCLA.
The findings of this preliminary report are based in part on a three-hour clinical evaluation of Judge
Newman performed by me on August 25, 2023, including administration of The Modified Mini-Mental
State Examination (3-MS).
Other records reviewed and considered in the opinion include:
1) Primary Care Medical Records from One Medical Group for Judge Pauline Newman, dated 02/26/202106/14/2023
2) (Enclosed within above) Cardiology Medical Records from Scott Shapiro, MD, PhD, including an
Echocardiogram performed 05/26/2023
3) Statement of Clinical Impression of Ted L Rothstein, MD, Neurologist, summarizing Clinical Evaluation
and Findings from Examination dated 06/21/2023

Page 2 of 6
3) Publicly available proceedings at: https://cafc.uscourts.gov/home/the-court/notices announcements/
4) Law360 Article by Andrew Michaels. “Judge Newman's Recent Dissents Show She Is Fit For Service,”(06/06/2023)
5) Social Science Research Network Manuscript by Ron D. Katznelson, Ph.D. “Is There a Campaign toSilence Dissent at the Federal Circuit? (August 28, 2023).”
6) Description of duties of a United States Circuit Judge
Informed Consent
Judge Newman was informed that a confidential doctor-patient relationship did not exist due to thenature of the evaluation process, and that although an opinion would be rendered, medical treatment
would not be provided. She agreed to pay the associated fees for this evaluation. The contract and fee
structure were reviewed. Notably, Judge Newman carefully considered the contract and autonomously
commented on the open-ended nature of the arrangement. She requested and her attorney executed anaddendum to ensure costs beyond a reasonable, specific sum would be mutually agreed upon before
being incurred. Judge Newman was informed that a report of the results of the evaluation would be
provided to the U.S. Court of Appeals for the Federal Circuit in regard to the current investigation. Judge
Newman indicated that she understood this information and agreed to undergo the evaluation. She
provided written consent for disclosure of information to and from the non-public sources named in therecords reviewed.
History of Present Complaint
Judge Newman presented for this evaluation on August 25, 2023 in association with an ongoing complaint
and action filed with the U.S. Court of Appeals by Chief Judge Kimberley Moore, under the Judicial Conduct
and Disability Act. The complaint filed by Chief Judge Moore states that concerns exists within the courtthat Judge Newman “has engaged in conduct prejudicial to the effective and expeditious administrationof the business of the courts” and/or “is unable to discharge all the duties of office by reason of mental
or physical disability.” The complaint detailed allegations of decreased work output with significant andhabitual delays in “processing and resolution of cases” (resulting in re-assignment of some cases), an
episode of fainting during a hearing followed by Judge Newman’s inability to ambulate independently,
and potential “impairment of cognitive abilities (i.e., attention, focus, confusion and memory) that render
Judge Newman unable to function effectively in discharging case- related and administrative duties. It has
been stated that Judge Newman routinely makes statements in open court and during deliberative
proceedings that demonstrate a clear lack of awareness over the issues in the cases.” There was also anallegation of “inappropriate behavior in managing staff” and a disclosure of sensitive medical information
to staff.
Judge Newman was suspended from hearing further cases beginning in April of 2023, “pending resolutionof this investigation.”
Evaluation and Observations
Judge Pauline Newman arrived 30 minutes early for the evaluation. She was professionally dressed,
appropriate for the weather (mentioning it was likely to rain), and her grooming and hygiene wereunremarkable, with no obvious areas of deficit. Demeanor was calm and cooperative. She had eyeglasses

Page 3 of 6that she wore for reading tasks but removed in conversation. She spoke fluently and attended well to theinterview, handling changes in topic with agility. Her speech was notable for an expanded vocabulary
consistent with her lifetime work in law. She was careful to clarify any terms that might have been
unfamiliar to the interviewer; for example, she indicated that her judicial assistant functioned “in effect,
as my secretary” until the interviewer indicated familiarity with the term “J.A.”, whereupon she used thatterm going forward.
Interactively, Judge Newman warmed to the interview, and provided full and detailed responses. Judge
Newman was able to articulate and respond to the concerns raised in a collected manner. She had no
specific recollection of a negative event or experience that might have given rise to the complaint. She
was aware that her intellectual abilities and personal medical fitness were being questioned, and stated,“If I’m deluding myself, I’d be glad to know that.” When the prospect of a voluntary cognitive evaluation
during the interview was mentioned, she frowned and opined, “it's totally improper and inappropriate formy colleagues to put me through these tests. When people are being evaluated, you eventually get toquestions that cannot be answered. My experience with my colleagues is that whatever the break-point
is, then they point out where you could not answer. There is also a totally unscrupulous media thatmisrepresents the results.” The voluntary nature of the cognitive evaluation was reiterated, and thematter was agreed to be re-considered at the end of the interview.
Occupational History and Recent Events
Judge Newman provided a detailed social, educational, and occupational history that is abbreviated here
for expediency. She recalled becoming a federal judge in 1984 at the request of President Ronald Reagan,from whom she received a personal phone call offering the role. At the time, she has been working for 30
years in a senior role in the patent system. In regard to the judgeship offer, she stated, “it wasn’t what I
was looking for, but the court had been formed just a few years before. In regard to the politics, I had noidea. I got a call and said I’d be willing.” Judge Newman expressed that she finds her work intellectuallyand philosophically engaging, and enjoys it immensely. She remarked, “it's an extraordinary position; it's
very difficult work, but it's full of satisfaction for doing something for the nation. Doing some justice.” She
noted, “I do speak out about what I think. I know very well I’m not popular with my peers. I think one of
the reasons I’m in trouble is when I think they’re wrong, I tell them. The Supreme Court usually then says
I’m right - that’s a reassurance.”
With regard to productivity and quality of her opinions, Judge Newman expressed that she felt “nothing
has changed. I’m still learning things.” She agreed that human aging was generally associated with somenatural slowing of work production and physical skills, particularly at extreme ages. However, she also
noted that “the work does not require a 20-year old's peak [performance]. I see some things more clearly
due to my experience.” She referenced the statistical review of her work output published by Ron
Katznelson (listed in records reviewed section of this evaluation) in this vein.
Judge Newman characterized herself as a generally strong-willed and outspoken individual, even whenher opinions were not in line with others. She noted, “they are saying I’m grouchy and my staff have beenleaving. I’ve been arguing with the IT staff because they took my [secretary’s] computer two or threemonths ago.” She also noted that “all of the affidavits saying my behavior is inappropriate have been in
the past few months, since this complaint was filed. I am not physically disabled, and I’m still writing
opinions. If I thought I was slipping, I would quit.”

Page 4 of 6
Judge Newman expressed understanding that individuals experiencing cognitive decline often exhibit
impaired insight into their deficits. She was open to reflection on the particular threat to one's identity
when a highly distinguished career—one requiring intellectual prowess and fine attention to detail andcontext—is brought into question by the prospect of cognitive decline. Unrelated to this discussion, butbrought up at a different point in the evaluation, Judge Newman indicated that she was aware that her
cataracts were impairing her vision. She noted that she had voluntarily allowed her driver’s license to
expire as she felt this condition made it unsafe for her to drive.
Medical History
Judge Newman was able to recount her own medical history accurately, including “a pacemaker due towhat they call sick sinus syndrome, around 2018,” a fractured right wrist a few months ago,
She stated that outside of the surgery to implant the pacemaker,
she has had no other surgeries.

She denied episodes of confusion or getting lost. She denied any instances of seizures, traumatic brain
injury, or noting loss of memory. She recalled a single event of syncope in April of 2023, “I think ofdehydration. I was not admitted.”
She denied having balance problems. She explained that she fractured her wrist while sprinting to take aphoto of cardinals seen outside her apartment, where she lives alone.
In terms of past psychiatric history, she reported “none! To my amazement, even in this turmoil—wellperhaps that's the fatal flaw—it's not getting to me.” She stated that her mood remains upbeat (“maybe
some good will come of this”), and her sleep is sufficient and restorative. She denies any personal historyof anxiety, depression, mania, psychosis, or misuse of alcohol or other substances, and denied any family
history of the same. Judge Newman reported that her mother had lived to be well into her late 90s withno cognitive difficulties.
Current Function in Independent Activities of Daily Living
Judge Newman lives alone in a two-story apartment in Washington, D.C. She has no significant other orchildren, but stays in contact with her sister’s family and her friends. She remarked that she has been
grateful to be a generally very healthy individual. She walks around the city for transportation. She
reported that during the COVID public health emergency, she was advised to avoid large crowds due toher advanced age, and thus requested assistance with getting food. However, she stated that she herself
prepares her own food. Since the announcement of the end of the public health emergency she has
resumed going to the grocery store.
She stated that she has employed an individual to assist her with cleaning her apartment for many years;“I’m not much of a homemaker.” She pays her own bills, and at the initiation of this evaluation, produceda check that she filled out accurately and completely for the retainer fee.

Page 5 of 6
Cognitive Evaluation
Given Judge Newman's advanced educational attainment and exceptional verbal fluency, the possibilityof some degree of successful concealment of an underlying cognitive defect was examined. A quantitative
examination of cognition was thus performed at the end of the interview. The Modified Mini-Mental
Status Exam (3-MS) was administered; this test was chosen specifically to avoid re-testing (“learning”)
effects related to the recently administered Montreal Cognitive Assessment (MOCA). Having personallyadministered the 3-MS several hundreds of times to individuals of varying cognitive abilities, myexperience is that the examination usually requires 20 to 30 minutes to complete. The 3-MS is given in ahighly standardized manner, with scripted prompts for the items. It is scored on a 100-point scale.
Judge Newman was able to read, write with her right hand, and reply appropriately to complete theexamination. Judge Newman completed the 3-MS in 11 minutes, with a final score of 98 out of 100. She
missed 2 points for generating only eight four-legged animals in 20 seconds, out of a possible 10. She wasdismayed to hear of this result and scolded herself for not thinking of barnyard animals as a category. Shescored perfectly on the word recall items, retaining all 3 words after both immediate and delayed time
periods. The original 3-MS scoresheet is attached as Exhibit 1.
Summary and Opinion:
In summary this is a fluent, engaging, strong-willed, highly accomplished and unusually cognitively intact
96-year-old woman with chronic medical issues that appear well-controlled at the current time, with noevidence of current substantial medical, psychiatric, or cognitive disability. She is ambulatory, provides acomplete and accurate personal, social, occupational, and medical history, and is fully oriented to time,
place, date, situation and the nature of the current investigation. She reports no history of, or current,
psychiatric or cognitive issues including anxiety, depression, or substance use disorders. She appears toshow remarkable resilience; while she noted feeling “defensive” about the investigation, she did not note
persistently anxious or depressed mood. She expressed a positive worldview, and chatted
extemporaneously with the interviewer regarding a recent advance in the treatment of alcoholism that
she had read about.
In my medical and professional opinion, 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.

Page 6 of 6
Sincerely,/s/Regina Carney, M.D.
Diplomate, American Board of Psychiatry and Neurology
Diplomate, Forensic Psychiatry, American Board of Psychiatry and Neurology
Associate Program Director, Forensic Psychiatry Fellowship
Voluntary Assistant Professor, Department of Psychiatry and Behavioral Sciences
Leonard M. Miller School of Medicine at the University of Miami Adjunct Assistant Professor
Alpha Omega Alpha Teaching Faculty
Herbert Wertheim College of Medicine at Florida International University
Medical Director of Inpatient Psychiatric Services (09/2018-09/2022)
Medical Director of Outpatient Substance Use Disorder Clinic (09/2022-current)
Miami Veteran Affairs Medical Center
1201 NW 16th Street, Room A110
Miami, FL 33125
Phone: 615-636-5792 (cellular)
Email: rcarney0305@gmail.com

Exhibit 1
to theReport of Independent
Medical Examinationof Pauline Newman
byRegina M. Carney, M.D.

THE MODIFIED MINI-MENTAL STATE EXAMINATION (3MS)
Center:Individual #:Family#:Date of Exam:

Individual's Name:
Examiner:,,,,,.."\),.._}> Now, I would like to ask you some questions to check your memory and concentration. Some of the questions may be easy and some will be1

ll!lf..Jllfll

hardei:. Take your time if you need to. We can skip over questions if you don't understand them. Just relax and do your best.

START TIME
I.

2.
3.
4.

5.

6.

.(y

CORRECT .....................
INCORRECT................... 0
RECORD: (.),
�\IU.V\
REFUSED ....................... 7\
Who was the pre�ent before him? +�I\Sll�°"L "llll,J...,...._,�-'<1M!f .S) CORRECT .....................(J.>INCORRECT ................... O
REFUSED....................... 7
RECORD:
J111 f°a.VY\t8W S- -=WJJb\'{)
CORRECT ....................Ul
Who is the Vice President of the United States now?
INCORRECT......
REFUSED ·······---1
REcoRD,e'IY\ ).
CORRECT ____,(!)
Who was the Vice President before� �
0
INCORRECT..
RECORD: :th,I h11
REFUSED......
7
LIS
'4�
)
(
CORRECf ____
Who is the governor of your state now?
INCORRECf___'::.f('W< 6,_c, VO-!- �v.c. o... �ovi... 1 n. OC·
REFUSED
7_
RECORD: HOW 4x:()cJ! r\ix
1 �4.td,-t
Who is the president of the United States now?

lb.,

k'.o

a:;-

Sf'

H ¾risftiV'f'<l

d\

fie

k'\•

.9,t�

There are 3 words on this card that I would like you to remember.
Please say the words aloud while you read them. Then I will take thecard away, and have you repeat all 3 words.

SHOW WORDS AND HAVE RESPONDENT READ. CORRECT(HIM/HER) IF (HE/SHE) MISREADS. TAKE CARD AWAY. Now what
were those three words? HAVE RESPONDENT REPEAT. IF THEREARE ERRORS, CONTINUE WITH ADDITIONAL TRIALS (UP TO 3
TRIALS).

SCORE (0-3)

131

REFUSED-----'-7
NUMBElt OF�
NEEDEDSCORE FIRST TRY. REPEAT WORDS FOR THREE TRIALS ONLY.
TRIAL#2
SHIRT
NICKEL'DJALfQV

HONESTY•••• BE SURE TO SAY: Remember the 3 words becauselakrlwillm..,llii •repeat them.

L0n1ors
Form Name: AD 3MS
Revised: 8/16/06

7.

DOES NOT COMPREHEND TASK SCORE O ON
BACKWARD TASK AND GOTO IT EM 8

Now please count from 1 to 5.
ASSIST ONLY ONCE IF NEEDED.
V
I

RECORD:

✓
2

✓
3

✓
4

✓
5

Now I would like you to count backwards from 5 to 1.
RECORD:
8.

v'
5

✓

✓
4

3

____.,,..___
2

Please spell the word "World."
ASSIST ONLY ONCE IF NEEDED.

RECORD:

_,L_

w

✓

/

0

R•.

____£_L,/./

CORRECT .... ........ ........................('.j>I OR 2 ERRORS................................ 1:,:3 ERRORS/CAN'T DO.................. 0
REFUSED...................... ..............?
DOES NOT COMPREHEND TASK SCORE O ON
BACKWARD TASK AND GO TO ITEM 9D

Now please spell "World" backwards.
RECORD:V
D_______L
L

_,L
R

✓
0

✓

w

F

E

�g��ci'r?.:.°. .��� ��·�·�°-��:.
REFUSED ........ . .... .......................?

l.J

What were the three words that I asked you to remember? (SHIRT, NICKEL, HONESTY)IF THE SUBJECT DOES NOT GIVE ALL CORRECT ANSWERS, PROMPT AS NEEDED:V
RECORD:(HONESTY)(NICKEL)(SHIRT)

9.

A) SPONTANEOUS RECALL ............. 3I) One of the words was something you
wear.
RECORD__22) SHOW CARD. HAVE S. READ AND
MAKE SELECTION. SHOES, SHIRT,SOCKS ................................................... !
CIRCLE WORD.
3) IF STILL INCORRECT RESPONSE,PROVIDE CORRECT ANSWER(shirt).

NO RECALL/CAN'T DO ..................... 0
REFUSED .............................................. 7

B) SPONTANEOUS RECALL ..............3C) SPONTANEOUS RECALL.. .............. 3

RECORD__22) SHOW CARD. HAVE S. READ
AND MAKE SELECTION. PENNY,
NICKEL, DOLLAR ................................. 1
CIRCLE WORD.

1) One of the words was a good personalquality or virtue.
RECORD_________2
2) SHOW CARD. HAVE S. READ AND
MAKE SELECTION. HONESTY,CHARITY, MODESTY............................. I
CIRCLE WORD.

NO RECALL/CAN'T DO ....... ...............0
REFUSED .... ........................................... ?

NO RECALL/CAN'T DO ........................ 0
REFUSED ................................................ 71) One of the words was some money.

3) IF STILL INCORRECT RESPONSE,PROVIDE CORRECT ANSWER(nickel).

3) IF STILL INCORRECT RESPONSE,PROVIDE CORRECT ANSWER(honesty).

SCORE FOR SHIRT"·············SCOREFOR NICKEL ............ �,3
SCORE FOR HONESTY........

3

JLoutofl6
Form Name: AD 3MS
Revised: 8116/06

ORIENTATION SECTION (ITEMS 10-18)
10.

What year is it?

CORRECT ....................................................................GiMISSED BY I YEAR .................................................... 1
INCORRECT/CAN'T DO....................................... O
REFUSED ............................................................... 7

What is the season of the year?

. CORRECT WITHIN A WEEK ....................................(DMISSED BY I MONTH ................................................ 2
INCORRECT BUT NAMES A SEASON ..................... 1
INCORRECT/CAN'T DO.......................................OREFUSED ............................................................... 7-

RECORD:5V'MN\eetlr!\•
12.

What day of the week is it?
RECORD:,

fri �

13.

What month is it?

14.

What is today's date?
RECORD:

15.

CORRECT...................................................................@)MISSED BY I DAY ...................................................... 1
INCORRECT/CAN'T DO.......................................OREFUSED ...............................................................7
CORRECT....................................................................U)INCORRECT BUT WITHIN 3 DAYS .......................... 2
MISSED BY I MONTH ................................................ 1
INCORRECT/CAN'T DO.......................................OREFUSED ...............................................................7

Q').._S_�-------

What state are we in?

w$--O.rc.-1W1+ '"' �s�RECORD:�"' ov-kll roe f.L II�
:'1
16.

CORRECT ...................................................................
MISSED BY 1 OR2 DAYS........................................... 2
MISSED BY 3-5 DAYS ................................................. 1
INCORRECT/CAN'T DO ....................................... O
REFUSED ............................................................... 7
CORRECT ..................................................................
INCORRECT/CAN'T DO .......................................OREFUSED ...............................................................7(!).�: V1rq:t\'<L
CORRECT .....................................................................
What county are we m?
,.J I
INCORRECT/CAN'T DO.......................................OREFUSED ...............................................................7
RECORD:� fell Meg
�(Dccx,.J..i ? MOt1.-1ju11.e�� ,MJ)CORRECT.....................................................................(j)What towu are we in? W-o.., l\;h!l
17.
'fl:lll ()a..
IFS. DOES NOT ANSWER, PROMPT AS NEEDED:
What is the nearest towu?
What town do you consider to live in?
What is the town on your mailing address?
RECORD:__18.

___

Are we in a church, a home or an office?
RECORD:!l-� C,,c...-

INCORRECT/CAN'T DO ....................................... O
REFUSED .............................. , ................................7

CORRECT .................................................................
INCORRECT/CAN'T DO....................................... 0
REFUSED ............................................................... 7

CJS'
2o Outof20

Form Name: AD 3MS
Revised: 8/16/06

IF SUBJECT IS BLIND, TAP SUBJECT FOR ITEMS 19-23, AND SAY "I am going to tap you and I'd like you
to tell me the name of the body parfthaqtap."
19.

POINT TO YOUR FOREHEAD.
What is this called?

20.

RECORD: fortl'\t.�d,
POINT TO YOUR CHIN.
What is this called?

21.

RECORD:ll.¥,i\,,POINT TO YOUR SHO
What is this called?

22.

CORRECT ...................................................................... [)INCORRECT/CAN'T DO .......................................OREFUSED ...............................................................7
DER.

----BQJ;�<:::[
t--\ a(0................................................................
CAN'T DO ....................................... O........................................................ 7

�e. �.s Po,u e.s c:\.ow " f> \�\

4"'

POINT TO YOUR�OW.
What is this call':51'/

1..,""1:UUOCT ..................................................)...............
INCORRECT/CAN'T DO .......................................OREFUSED ...............................................................7

What is this called?

CORRECT .....................................................................
INCORRECT/CAN'T DO.......................................OREFUSED ...............................................................7

23.

24.

CORRECT ..................................................................... .(DINCORRECT/CAN'T DO....................................... O
REFUSED ............................................................... 7

Q)

Ci)

Now I am going to give you a category and I want you to name as many things as you can that come from thatcategory. For example, if I said "fruit," you would say "orange, apple, or banana." Can you name another kind offruit? RECORD RESPONSE.

Now I have another category and it is animals. Please name as many
four-legged animals as you can. You will have 20 seconds. STARTTIMER. TELL SUBJECT, "Begin now". ALLOW 20 SECONDS. IF NORESPONSE IN 10 SECONDS, REPEAT THE QUESTION ONCE,
RECORD; ALLOW ANOTHER 10 SECONDS, THEN GO TO ITEM 25.

SCORE ....................... (0-10)
REFUSED ........................97

1°1sl---1,;Lout of 15
Form Name: AD 3MS

Revised: 8/16/06

Gl

32.

HAND S. A PENCIL AND FOLDED SHEET.
Please write a sentence on this page.
ALLOW I MINUTE, AND ANOTHER 30
SECONDS AFTER PROMPTING (IFNECESSARY). PROMPT IF S. WRITESINCOMPLETE SENTENCE: Write thesentence, "The band played and the crowd
cheered."LEGIBLE, CORRECT SENTENCE ..........................
LEGIBLE SENTENCEWITH ERRO R(S) ................
LEGIBLE, CORRECT SENTENCE AFTERPROMPT ....................................................................... 3
LEGIBLE SENTENCE WITH ERROR(S) AFTERP ROMPT ....................................................................... 2
WRITES NAME OR LEGIBLE, INCOMPLETE
SENTENCE AFTER PROMPT ..................................... 1
ILLEGIBLE/CAN'T DO ........................................ 0
REFUSED ............................................................... 733.

SHOW S. SHEET WITH DRAWING. Here isa drawing. Please copy the drawing on thesame paper. POINT TO BOTTOM OF THE
PAGE BELOW DOTTED LINE. ALLOW I
MINUTE FOR COPYING.

SCORE EACH PENTAGON
L(J)
5 SIDES ...........................................................
I UNEQUAL SIDE ............................................ 3 . . . . .3
OTHER CLOSED FIGURE ............................... 2 . . . . .2
2 OR MORE LINES ........................................... 1 , . . . . 1
CAN'T DO ............................................................ 0
REFUSED............................................................... 7

Y(!) . .

.Jl

INTERSECTION
4CORNERS .................................................................(])
NOT A 4 CORNER ENCLOSURE ................................ 1
NONE/CAN'T DO ................................................. 0
REFUSED ............................................................... 7
34.

What were the three words that I asked you to remember (SHIRT, NICKEL, HONESTY)? IF THE SUBJECT DOESNOT GIVE ALL CORRECT ANSWERS, P ROMPT AS NEEDED:V___

RECORD:______(SHIRT)v(NICKEL)(HONESTY)I) One of the words was some money.
RECORD________ �22) SHOW CARD. HAVES. READ
AND MAKE SELECTION. PENNY,
NICKEL, DOLLAR ................................. 1
CIRCLE WORD.

I) One of the words was a good personalquality or virtue.
.2
RECORD_______
2) SHOW CARD. HAVES. READ AND
MAKE SELECTION. HONESTY,CHARITY, MODESTY............................. 1
CIRCLE WORD.

3) IF STILL INCORRECT RESPONSE,PROVIDE CORRECT ANSWER (shirt).

3) IF STILL INCORRECT RESPONSE,PROVIDE CORRECT ANSWER(nickel).

3) IF STILL INCORRECT RESPONSE,P ROVIDE CORRECT ANSWER(honesty).

NO RECALL/CAN'T DO .......................0
REFUSED ..........................................?

NO RECALL/CAN'T DO ....................... 0
REFUSED .......................................... ?

NO RECALL/CAN'T DO ....................... 0
REFUSED........................................... ?
SCORE FOR SHIRT ....................

6) B) SPONTANEOUS RECALL ...........-0/ CJ SPONTANEOUS RECALL..............©

A) SPONTANEOUS RECALL ............

I) One of the words was something youwear.
2RECORD___)
2 SHOW CARD. HAVE S. READ AND
MAKE SELECTION. SHOES, SHIRT,SOCKS ................................................... 1
CIRCLE WORD.

LJ
SCORE FOR NICKEL ................. LJ
SCORE FOR HONESTY ............. lJ

M_outof24
Form Name: AD 3MS
Revised: 8/16/06

�-h" /JflS wevc
�ere, j im� rr\\.r • cS�ul d-\.L {_ -\-o lJJ o..s ti h&h v- DC: ( flatNOTES:

3MS Score
Page I Total:j': / 8Page 2 Total:{,(, I 16

Page 3 Total:

J..0 120

Page4 Total�Page 5 Total:l 1 /17

Page 6 Total:

Z 4 / 24

Total/Raw Score:'t 8 / 100

Education Adjusted Score:5 1-l 1 RT
N!c(cf-ll-io (\JES-r\/

CLOSE YOUR EYESALZHEIMER DISEASE CLINICAL DEMENTIA RATING (CDR)
Center:Family#:Individual's name:Individual#:

�II...,___,___��

Exam Date:

Examiner:

Evaluation by:

� In Person

O Yes

Reconstructed?

O Telephone WMedical Records[;;?'NoO Unknown

Impairment Level and CDR Score (0, o.s, 1, 2, 3)

Questionable

Mild

1

Moderate

0,5Consistent slightforgetfulness; partial
recollectiOn of events;"benign' forgetfulness

Moderate memory loss; moremarked for recent events;, defect Interferes witheveryday activities

Severe memory loss; only
highly learned material
retained; new material
rapidly lost

Severe memory loss;
only fragments remain

Fully oriented except forsflght difficulty with time
refatlonshlps

Moderate difficulty with llme Severe difficulty with tlme
relationships; 01leni:ei;I for
relationships; usuallydisoriented to time, often to
Place at examination; may
have geographic
place
dlsorlent.1tlon elseWherl!

Oriented to per�on only

Slight Impairment insolving problems,
slmi!arlties, & differences

Moderate difficulty inhandl!ng problems,
Slmllarit1es, and differences;
social Judgment usually
maintained

Severly Impaired In handling Unable to make jud_gments
problems, similarities, andor solve problems
differences; social judgment
usualli,: Impaired

Unable to function
Independently at these
actMties although may stlll
be engaged In some; appears
normal to casual Inspection

No pretense of Independentfunction outside home;appears well enough to betaken to functions outside
a famtly home

None0
Memory •NO memory loss or s!i�::)
Inconsistent forgetfulness

Orientation f'(u°11y Oriented)-

Judgment �olves everyday
Pr0blem problems & h.indles ,�Solving business & flnanclal affairs

well;judgment good In
relation to past petforman�

Communlt. ,ndependent function at �
Affairs l usual level In job, shopping,�

lunteer & soc!al grou__./

Jee' vi.A.,..,,.,.� ,.8�Personal ,,.,,,y capable or se1r ca,

Care

Slight Impairment In theseaCtivltles

�

Home& ljfe at home, hobble$, and'\Hobbles( Intellectual Interests wen
maintained...+ 0..,,..,,,.,..

��

Life at home, hobbles,
and Intellectual Interests
Impaired slightly

fo"'""

R,,=.111,,1,.,

Fully capable of self-care

Severe3

2.

No pretense oflndepen_dent function
O_!.Jtside home; appears too!ti to be taken to functions
outside the home

Mild but definite Impairment Only simple chorespreserved; very restricted
ol function at home; moreInterests, poorly maintained
difficult chores abandoned;
more complicated hobbies
and Interests abandoned

No significant funcllon In
home

Requires assistance In
dressing, hygiene, keepingof personal effects

Requires much help withpersons care; frequent
Incontinence

Needs prompting\fJt II d.,r,S'S�11.. I� "r-o br I M-1' • ldOl't't'\i"•""" d. h. H ; r e.-J "'-.S "" d J .foY

Global CDR:l"'<-S+r. ,rm

Co!llments: f.
\,\II
AOO:

�pf> ..r-k I,(�DEPRESSION/STROKE HISTORY:

A,,,.,,,,., .. 'e X f.

f

Revised:6/21/06

�(I.

wr.·s+

0re.,':)CHRONOLOGICAL HISTORY OF DECLINE: (PLEASE CONTINUE IN THE BACK) I.J,s .J..�.

Form Name: AD CDR

Score:

0-.

\$l'f.'M�
J,t.. C.,Q'""'-t-"
it\1'U' 'h.l:l<J-iiOM.

3J

Exhibit 11

From:
Sent: Tuesday, January 31, 2023 11:10 AMTo:
Subject: RE: Judge Availability for April 2023 Court Week

Good morning,■:

Judge Newman is available to sit 2-3 days, or as needed for April 2023 court
week. Judge Newman advised me our panels may be limited until our back log ofolder cases is reduced. Thanks so much!
Best,,M.P.S.

Paralegal to the Honorable Pauline Newman
U.S. Court of Appeals for the Federal Circuit--�l---20439

From:
Sent: Monday, January 30, 2023 7:50 AM

Subject: Judge Availability for April 2023 Court Week

Good morning,
Please let me know the number of days your judge is available to sit during April
2023 court week (April 3, 2023 April 7, 2023) no later than F1·iday, February 3,
2023.
Thank you,
Executive AssistantChambers of Chief Judge Kimberly A. Moore
U.S. Court of Appeals for the Federal Circuit
717 Madison Place NW
DC 20439

Exhibit 12

DECLARATION OF TED L. ROTHSTEIN, M.D.
1. I, Ted J. Rothstein, M.D., am over the age of 18 and make this Declaration in support ofJudge Pauline Newman’s Response to the Judicial Council in her case before it.
2. I am a Neurologist practicing in Washington D.C. I am affiliated with the George
Washington University Hospital.
I received a medical degree from Virginia
Commonwealth University School of Medicine.
3. I have practiced medicine for more than 30 years. I am Board Certified in Neurology. I
served an internship at the Queens Hospital in Honolulu, Hawaii, and completed Residency
in Neurology at University of Washington in Seattle, Washington.
4. I became Board Certified in Neurology in 1975 and am both a Fellow of the American
Academy of Neurology and Stroke Fellow of the American Heart Association.
5. I have 32 peer reviewed publications in scientific journals and 100 presentations in my field.
6. My most recent publication is Cortical Grey Matter Depletion Links with Neurological Sequelae in
Post COVID-19 “Long Haulers,” in BMC Neurol. 2023 Jan 17;23(1):22.
7. I make this Declaration based on personal knowledge as to my background, andinformation gleaned from examining Judge Newman on June 21, 2023. I produced a reportbased upon that examination on June 21, 2023, and it is attached as Exhibit 1 to thisDeclaration.
8. My examination of Judge Newman was, except as to adjust to her then broken wrist,
complied in all respects with the Montreal Cognitive Assessment (“MoCa”) test that isstandard for assessing cognitive function.
9. Before administering the MoCa examination I took an oral medical and neurological historyof Judge Newman. I also reviewed the analysis of Professor Andrew Michaels of the
University of Houston on her representative opinions. At the time of my examination, she
was under investigation by the Judicial Counsel for “medical impairments.” My test
demonstrated she had the cognitive function to continue to function as a judge in the
court’s proceedings.
10. It has been suggested that the MoCa test was inconclusive or unscientific because Judge
Newman could not draw a clock at a particular time given her broken wrist.
11. The MoCa is a 30-point test and failure to draw a clock does not impede conclusions thatcan be drawn from the 3 points not testable. Moreover, a variety of elements are tested on
MoCa, and spatial orientation is the only one that could not be evaluated on clock drawing.
12. Impaired wrist function does not preclude testing of cognitive function.

Page 1 of 3

I declare under penalty of perjury that the foregoing is true and correct.
Executed On: August 29, 2023

/s/ Ted L. Rothstein
Ted L. Rothstein, M.D.

Page 2 of 3

Exhibit 1
to the Declaration of
Ted L. Rothstein, M.D.

NEUROLOGY

at The GW Medical Faculty Associates
21 SO Pennsylvania Avenue, NW, 9th Floor
Washington, DC 20037
phone: 202.741.2700 fax: 202.741.2721

Ms. Pauline Newman is a 96 yo United States Circuit Judge of the US court of Appeals
who is here to evaluate her mental status.
She is currently under investigation by her Court for "medical impairments" including
having had a heart attack and 2 stents -which she denies having- and being"intellectually compromised" and no longer able to function in her capacity as a federal
judge. As a consequence she has been denied access to new cases.

Judge Newman denies having cognitive impairment. Her opinions in the past year havebeen quantitatively analyzed by Law Professor Andrew Michaels at the University of
Houston Law School and found to be exemplary. He did not perceive "a significant dropin the quality or thoroughness of her opinions" over the previous decade.
She believes that she is being unfairly treated by her judicial colleagues. Much of thiscontroversy has been depicted in Washington Post accounts over her being prevented
from continuing to hear and write opinions on current cases.

rior hx of "sick sinus s ndrome" which is treated with a

She is a graduate of Vassar College, received a Master of Arts from Columbia University,a Doctor of Philosophy in Chemistry from Yale University and law degree from NY
University School of Law. There is no family hx for memory disorders or dementia.
Judge Newman broke her right wrist one week ago and her R wrist is in a cast. She isunable to write.
Review of systems is otherwise not contributory.
On examination,
Her speech is fluid, with normal content and articulation. She describes her medical
history and background with great detail and eloquence.

A partial MoCA examination is performed as she is unable to write and therefore cannot
follow trail or draw a cube (each worth one point on the 30 point test). She scores 24/28
failing to remember 4 of 5 words after several minutes. All other aspects of the test wereprecise and correct.
Her head is normocephalic.
Neck is supple.
Cranial nerves,
Funduscopic examination discloses bilateral cataracts. EOMi. PERRL.
Sensation is intact. Her face is symmetrical with normal smile and eye closure.
Hearing normal to voice.
Tongue protrudes in midline.
Sensory and Motor exam,
Sensation normal over both hands.
Her arm strengith is not tested.
Her gait is normal with normal stride, turn and arm swing. Romberg is negative.
Reflexes are 2+ at the knees and ankles.
Impression,
Judge Newman has a slight limitation in immediate memory as reflected in her MoCA
evaluation. Her cognition is otherwise completely normal. Her speech is normal and her
ability to provide her vocational and medical history is precise and eloquent.
As she has a cardiac pacemaker and therefore she cannot undergo a Brain MRI with
NeuroQuant which could have been used to measure volumes of key brain regions
important for memory, she could have a more detailed neuropsychological evaluation aspart of her neurological assessment..
My findings would support her having cognitive function sufficient to continue herparticipation in her court's proceedings.

Ted L. Rothstein MD
Professor of Neurology
George Washington University
June 21, 2023

Exhibit 13

Name:
Education:
Sex:

MONTREAL COGNITIVE ASSESSMENT (MOCA ®)Version 8.1 English
VISUOSPATIAL / EXECUTIVE

Draw CLOCK ( Ten past eleven )

Copy
cube

[

]

[

Date of birth:
DATE:
POINTS( 3 points )

]

[

]

[

Contour

]

]

/5

[ ]

/3

[

Numbers

Hands

NAMING[ ][ ]MEMORY

Read list of words, subject must
repeat them. Do 2 trials, even if 1st trial is successful.
Do a recall after 5 minutes.

ATTENTION

Read list of digits ( 1 digit/ sec. ).

FACE

VELVET

CHURCHDAISY

RED

1 TRIALST

2ND TRIAL
Subject has to repeat them in the forward order.

[

Subject has to repeat them in the backward order.

[] 2 1 8 5 4
]

7 4 2

Read list of letters. The subject must tap with his hand at each letter A. No points if ≥ 2 errors[ ] FBACMNAAJKLBAFAKDEAAAJAMOFAAB[ ] 93

Serial 7 subtraction starting at 100.

LANGUAGE[ ] 86

4 or 5 correct subtractions: 3 pts,

[ ] 79[ ] 722 or 3 correct: 2 pts,

Repeat: I only know that John is the one to help today. [ ]The cat always hid under the couch when dogs were in the room.

1 correct: 1 pt,

Similarity between e.g. banana - orange = fruit

DELAYED RECALL(MIS)

MemoryIndex Score
(MIS)

X3

WITH NO CUE

X2Category cue

X1Multiple choice cue

ORIENTATION© Z. Nasreddine MD

Administered by:

Has to recall words[] Date

[

FACE
[ ]

[

[

VELVET[ ]] train - bicycle

CHURCH[ ][](N ≥ 11 words)

RED

[ ]

[ ]

[

] Year

www.mocatest.org

Training and Certification are required to ensure accuracy

[

] Day

[

MIS:
/15
(Normal ≥ 26/30)

Add 1 point if ≤ 12 yr edu/3] Place

TOTAL

/1
/5

Points for
UNCUED
recall onlyMIS =] Month

/1/2] watch - ruler

DAISY

/2

/2

[ ]

Fluency: Name maximum number of words in one minute that begin with the letter F.

ABSTRACTION[ ] 650 correct: 0

NO
POINTS[/ 15] City/6/ 30

Exhibit 14

1

FEDERAL CIRCUIT JUDICIAL COUNCIL

2
3

BEFORE: THE HONORABLE KIMBERLY A. MOORE

4

THE HONORABLE RICHARD G. TARANTO

5

THE HONORABLE SHARON PROST

6
7

IN RE: COMPLAINT NO. 23-90015

89***SEALED HEARING***

10

PUBLIC REDACTED VERSION

11***CORRECTED***1213NATIONAL COURTS BUILDING

14717 Madison Place, N.W.

15

Washington, D.C.

16

Thursday, July 13, 2023

17
18
19
20
21
22
23
24
25

Reported by:

Susanne Bergling, RMR-CRR

2Complaint No. 23-90015
1

APPEARANCES:

2
3

ON BEHALF OF JUDGE PAULINE NEWMAN:

4

GREGORY DOLIN, ESQ.

5

JOHN VECCHIONE ESQ.

6

MARK CHENOWETH, ESQ.

7

New Civil Liberties Alliance

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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3Complaint No. 23-90015

7/13/2023

1

P R O C E E D I N G S

2

-

-

-

-

-

3

(Proceeding called to order at 2:00 p.m.)

4

CHIEF JUDGE MOORE:Good morning.

We're here for5argument -- or afternoon -- we're here for argument

6

today.

7

Mr. Dolin, are you going to proceed?

8

MR. DOLIN:

9

CHIEF JUDGE MOORE:

10

MR. DOLIN:

I am.
Please proceed.

Thank you, Judge Moore.

Good

11

afternoon, Your Honors.

12

litigation counsel from the New Civil Liberties

13

Alliance, for The Honorable Pauline Newman.

14

senior litigation counsel John Vecchione and, to his

15left, Mark Chenoweth, president and general counsel of16

the NCLA.

17

Gregory Dolin, seniorWith me are

Before I begin on the merits, with the18

Committee's permission, I would like to read our

19

objections in for the record.

20

CHIEF JUDGE MOORE:

Before you begin with that,21

let me -- as a housekeeping matter, I just want to22

remind counsel at the outset that our rules prohibit any

23

audio or video recording of this argument, and I want to24

ensure that you are not recording it in any way.

25

MR. DOLIN:

Judge Moore, we have read your order,

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7/13/2023

and we certainly have no intention of violating it.

2

CHIEF JUDGE MOORE:

Okay.

And then I just want3

to remind counsel that all aspects of this hearing are

4

confidential until we agree otherwise, okay?

56

MR. DOLIN:

Yes.

And, actually, I would like tocome back to that point, but, yes, I do understand that.

7

CHIEF JUDGE MOORE:

8

MR. DOLIN:

Please proceed.

So, first, just objections for the9

record.

10

Committee and the Judicial Council of this Circuit due

11to the inherent risk of an actual bias which we have12

documented in our submissions.

13First, we object to this proceeding before thisWe particularly object to the Special Committee's

14

membership given that all three of the members of this15

committee attempted to convince Judge Newman to retire

16in exchange for not launching this investigation.

17

simply do not understand, given the constitutional and18

statutory requirements, why the Chief Judge and/or the

19

Judicial Council have refused to request a transfer of20

this matter.

We

21

Second, we object to this Committee's orders

22

excluding parts of Judge Newman's legal team and her

23chambers staff from attending this hearing.

24
25

Third, we object to the Committee's refusal toeither provide us with a recording of this proceeding or

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permit us to create one.

2

Fourth, and perhaps most importantly, we object

3

to Judge Newman's continued and illegal suspension from4

the duties of the office to which she was nominated and5

confirmed, and our appearance here today should not be

6viewed as a waiver of any of the above objections.

7

Finally -- and this, I guess, goes to your last8

point, Judge Moore -- we reiterate our request that all

9of our materials submitted to this committee, including

10

our letters of July 5th and 12th, the Committee's order11of July 7th, 11th, and 12th, and a transcript of this12

hearing be released with appropriate redactions pursuant

13

to Rule 23(b)(7).

14With these objections noted for the record, I am

15

ready to address the substance of today's hearing.

16

the merits we take issue with the Committee's

17characterization of Judge Newman's behavior as failing18

to cooperate.

19

fail to cooperate with this investigation.

20

Quite the contrary.

On

Judge Newman did not

As we've stated in our letter of April 4th --21

sorry, April 21st, that Judge Newman is willing to22

cooperate with an investigation that's conducted23

consistent with the limits that the Constitution, the24

Judicial Disability Act of 1980, and the rules of the25

Judicial Conduct and Judicial Proceedings impose on such

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investigations.
In our May 9th letter, at pages 45, we've

3

indicated that Judge Newman is willing to cooperate --4i.e., work together -- as the word "cooperate" is5defined in the dictionary.

6

3, we once again said that Judge Newman is committed to

7

providing records and undergoing appropriate medical

8

examination if this matter is transferred.

9

JUDGE PROST:

10

MR. DOLIN:

11

JUDGE PROST:

In our letter on May 25th at

But Mr. -- I'm sorry --Of course.
-- but on that matter of

12

cooperation, even the citation you had in your brief,

13that was predicated on our transferring the case, as I

14

understood it, and on our restoring her to sitting.

15

I -- and that's the quote that was in your brief --16

MR. DOLIN:

That is correct, because as of our17letter on May 25th, Judge Newman was suspended,18

according to Judge Moore's own email, "pending

19

conclusion of this investigation."

20

there's no authority for such suspension.

21

Am

Respectfully,We, of course, question the authority to suspend

22

even to -- at the conclusion of the investigation23

because we submit that the Constitution does not permit

24suspensions, but that aside, there's absolutely no25

authority to suspend a sitting judge pending the

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investigation.
JUDGE PROST:

No, I appreciate that.

I just3

wanted to clarify your statements about her willingness

4

to cooperate and the predicate of --5

MR. DOLIN:

Correct, and so -- correct, and she

6

was willing to cooperate predicated on appropriate due

7

process proceedings and this Council and this Committee

8

behaving in an appropriate and legal manner as well.

9

So, yes, that was predicated on those matters.

10

And in contrast, this committee has refused to11

work cooperatively, because as we've pointed out in our

12letters, cooperation is a two-way street.

13

working together.

14

small, refused to cooperate and work together with Judge

15

Newman, as we have now said a number of times, and16

refused to transfer, even though every circuit faced

17with a similar situation has transferred any

18

investigation of a circuit judge to another circuit, and19

in refusing to do so attempted to support this refusal

20

with misleading data.

21

It means

This committee, on matters big andJust to point out that how every other circuit

22

dealt with this issue, even when a judge was no longer a23member of the Circuit Court, as was the case with then24

Judge Kavanaugh when complaints were filed against him

25

citing his alleged misbehavior during Senate

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1

confirmation hearings for his current seat, by the time2complaints were filed, he was already confirmed to the3

Supreme Court.

4

The complaints went to the D.C. Circuit Judicial

5

Council, and even though Judge Kavanaugh -- but now

6

Justice Kavanaugh -- was no longer a member of that7

Council, the matter was transferred.

8

Srinivasan was requested to transfer the matter, and it

9

was transferred to the Tenth Circuit.

10

find not a single instance when a complaint against a11

circuit judge that was not dismissed outright was

12handled in his home circuit, whether it's a complaint

13

against Judge Kavanaugh, Judge Maryanne Trump Barry, or

14Judge -- I'm blanking on his name -- but the former

15

judge of the Sixth Circuit, Judge Jones of the Fifth

16

Circuit.

17

Chief Judge

We were able toEvery single one was transferred.

This is the only time that it was not.

The

18

Federal Circuit Judicial Council stands alone, and,19

again, I fail to understand the logic behind it, and it

20

does show that this committee and council has refused to21

cooperate with Judge Newman.

22

Of course, it has refused to reinstate Judge

23

Newman, and as I've pointed out, Judge Prost, there is24

absolutely no basis -- at least there was no cited basis

25

up until the order of the Judicial Council of June 5th.

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JUDGE TARANTO:

Can I just ask you, the word2

"cooperation" you're using with reference to the3committee based on what source?

4

MR. DOLIN:

5

in the dictionary.

6

Honor.

7

Based on the definition of that word
It means working together, YourJUDGE TARANTO:

The -- and the -- this is about

8

Judge Newman's refusal to cooperate with compliance with9

the orders of the Committee, right?

10

MR. DOLIN:

The hearing is certainly meant to11

address that issue.

12

Committee is that in order to cooperate, in order to13work together, there must be -- both parties must

14

actually work together.

15

willing to entertain any of Judge Newman's requests,

16

whether it's her restoration or, in fact, even given an

17

explanation up until June 5th after we filed our suit as18

to why she remains suspended.

19

JUDGE TARANTO:

What I am submitting to thisAt no point was the Committee

So we're here on a -- as you

20

know, a very specific three-part issue, whether there21

was a failure to cooperate with respect to the directive

22

with medical records, that's first; second, with respect

23

to the directive regarding the neurological and24

neuropsychological examinations; and third, the request

25

for interview.

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Can we just start briefly with the last one?

2

Twice, I think on April 17th and May 16th, the Special

3

Committee specifically invited Judge Newman to sit down

4

for an interview to discuss any alleged factual errors

5or, more generally, in the April 17th one.

6

good cause for Judge Newman's refusal to take up that7

express invitation for an opportunity to discuss the8claims with us?

9MR. DOLIN:

What was theWell, Judge Taranto, I think I would

10

respectfully disagree with the characterization.

11

don't think it was an invitation to discuss, as you

12

said, factual errors or other general matters.

13

the invitation --14

JUDGE TARANTO:I

In fact,

I think the April 17th order was

15

perfectly general as to sit down for an interview.

16

May 17th focused on -- was -- didn't limit it but

17

focused on some things that I think you all had said in

18

response to an earlier order and said there's been19

assertions that we have made factual errors and we would

20

like an opportunity to have an interview to hear about

21

those factual errors, and yet Judge Newman has said no.

22

MR. DOLIN:The

So, Judge Taranto, so to finish my23

previous answer and then kind of to expand on it, I --24

again, I so respectfully disagree with the25

characterization and the following sentence.

I think

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that the order did not specify exactly what the2Committee wished to interview Judge Newman about.

3

was just -- it's open-ended, but it didn't specify --4

JUDGE TARANTO:

5

MR. DOLIN:

6
7
8
9

There

But she said she wanted it.

That's -- respectfully, that's notwhat it said.
JUDGE TARANTO:The April 17th said sit down for

an interview.
MR. DOLIN:

But an interview implies that the10

Committee is asking questions, and so Judge -- it's

11

not -- it's not a conversation, so -- and so we would

12

want to -- but more fundamentally, like I said, we

13

object to this Committee proceeding because this14

Committee cannot -- by definition cannot be a neutral

15

decision-maker, cannot be the neutral recommender.

16

JUDGE TARANTO:

So it's not, in your view, that17

there was no opportunity to have an interview with this18

Committee, but that she's not interested in having an

19interview with this --20

MR. DOLIN:

I don't think I suggested there was

21

no opportunity for an interview.

I've suggested that22

the Committee, in requesting an interview, did not

23

specify why it wants one.

24

interview was contrary to the prior assertion that this25

Committee and this Judicial Council is apparently aware

In fact, its request for an

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1of the personalities and aware of what has gone on,2which is why, supposedly, it's refusing to transfer the3matter elsewhere.

4

But furthermore --5

JUDGE TARANTO:

6

I'm sorry, "supposedly"?

Where

do you get that?

7

MR. DOLIN:

That was part of the order of -- the8first order that denied transfer.

9

believe, of May 3rd, and that order said one of the10reasons we're refusing to transfer is because we, the11Federal Circuit Judges, are familiar with the12personalities and with the issues in a way that other13

circuits would not be familiar with.
JUDGE TARANTO:

14

That was the order, I

You're referring, I assume, to15some elaboration from the Breyer Committee Report about

16

why the Breyer Committee implemented the statute to make17

transfer an exception, right, as a general matter?
MR. DOLIN:

18

No, Your Honor.

I'm referring to the19order of May 3rd, which -- hold on -- on page -- it's a

20long order.

I have to find it.

21(Pause in the proceeding.)

22

CHIEF JUDGE MOORE:

23

the May 3rd order.

24

MR. DOLIN:

25

right.

I think you want page 10 ofPage 10, thank you.

Thank you,

So request for a transfer, so it starts at page

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9, and it suggests that in this case relative ignorance

2of the judges of another circuit, of local circumstances3

and personalities that might make them less able to4gauge whether corrective action would be effective and5

appropriate, and judges within another circuit would be

6

in a poor position to persuade a judge whom they do not

7know well to take the actions they believe are8necessary.

9

Of course, that is always true in every complaint

10

about a circuit judge, but this seems to me, at least

11

the way I read it, was a justification as to why this12

matter was not asked to be transferred.

13

JUDGE TARANTO:

Can I -- can I turn to a14

different topic --15

MR. DOLIN:

16

JUDGE TARANTO:

17

CHIEF JUDGE MOORE:

18

could I ask a followup question?

19

JUDGE TARANTO:

20

CHIEF JUDGE MOORE:

Of course.
-- and this is -Before you turn to that,

Yes, of course.
I guess, Mr. Dolin, I'm

21

perplexed.

All this says is other judges in other22

circuits would be less familiar with personalities.

23

does that not -- how does that equate to, therefore, you

24

don't need to interview Judge Newman to understand the25concerns about errors of fact that she claims may exist?

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Complaint No. 23-90015
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MR. DOLIN:

7/13/2023
Well, first, Judge Moore, we've

2

pointed out two obvious errors of fact that -- you know,3

the claim that she had a heart attack and the claim that4

she had a cardiac stent placed.

5

understand where such allegations -- what the source of6these allegations are and on what basis they were made.

7

CHIEF JUDGE MOORE:Frankly, we don't even

Before we -- before we

8potentially discuss that, I guess I'd like to stick with9

what is the good cause for her refusal to interview.

10

the May 16th order, I will read to you the portion of11

the order which requests an interview.

12

In"Judge Newman has suggested that the Committee's

13

prior orders contained errors of fact, but she has not

14

identified any specific errors."

15

I get now that you're saying she did identify one

16

error, at least by now she has, and that's fine.

17

give you that.

18

I'll

"We have previously invited Judge Newman to meet19with the Committee for an interview in which she could

20

provide the Committee with information relevant to the21

investigation -- that's very open-ended, you see --22

including correcting any errors of fact.

23

request that Judge Newman participate in a videotaped

24interview with the Committee which will provide her with

25

an opportunity to clarify these matters."

We again

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How is the fact that another Circuit may be less2

familiar with personalities good cause for her refusing3

to participate in an interview which would create the4Committee with an opportunity to gain clarity into the5matters before it?

6

MR. DOLIN:

So a two-part answer.

First, I

7

think, as we're now on the same page, we have clarified

8

some of these errors with respect to the heart attack,9with respect to the cardiac stent, with respect to the10

errors on -CHIEF JUDGE MOORE:

11
12

argument about them.

13

right?

14
15

MR. DOLIN:
not an argument.

Actually, you have attorney

You don't actually have evidence,

No, I respectfully disagree.

It's

It's a statement that --16

CHIEF JUDGE MOORE:

17

MR. DOLIN:

What's a statement?

-- Judge -- it's a statement that

18

Judge Newman -- it's not an argument.

19

of fact that Judge Newman did not have a heart attack.

20

JUDGE TARANTO:

I'm sorry.

21

with personal knowledge?

22

MR. DOLIN:

23

It's a statement

Is that by somebody

Yes, by somebody with personal

knowledge.

24

JUDGE TARANTO:

25

MR. DOLIN:

That's you?

That is me, but I -- based on a

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personal --2

JUDGE PROST:

Well, since we're there, and I hate3

to interrupt the flow, but I would like to ask you about

4

that.

5

and to detail for us the information with respect to her

6

medical condition, including a heart attack, correct,

7

you've made statements that she never had a heart -- she

8didn't have a heart attack and she didn't have a stent,

9

but in our May 16th order, we repeatedly, when we talked

10

about getting medical records, we talked about cardiac

11

issues.

12

If you feel it's appropriate for you to respond

So can you represent to us, if she is accepting

13

that she didn't have a heart attack and didn't have a

14

stent, did she engage -- have any cardiac issues during

15

the period in 2021 that we're discussing that required

16

hospitalization or medical attention or otherwise?

17

MR. DOLIN:

I'm trying to -- respectfully, Your

18

Honor, I'm trying to think through my answer, not19

because I don't necessarily know the answer but because

20

of our standing objection to sharing medical information

21

with this Committee.

22
23
24
25

And so I think a better approach would be that
I -- I can't provide that answer, because -JUDGE PROST:

Okay.

Well on that point,

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MR. DOLIN:-- of our standing objection.

2

JUDGE PROST:-- in terms of sharing medical

3

information, some of the at least the surface

4

information that we have arises from Dr. Rothstein's

5

1 1/2 page report, in which in at least one paragraph,6

which he did, which I think most physicians and7neurologists would do, they would request certain

8

background medical information, and there's a reference

9

that he makes in that report to10

being treated by -- with a Pacemaker, and,[a cardiac condition]

11
12

a quick review of13

just the Mayo Clinic's report on defining that -- and14

you're a doctor, you probably understand this better

15

than I -- is that that is a heart-related problem.

16

MR. DOLIN:

I don't think we dispute -- I think

17

Judge Newman -- I think she has been very open that she

18

has a Pacemaker.

19

she had any issues in 2021.

20

question.

21

secret Judge Newman has a Pacemaker.

22even in newspaper reports, but --

23
24
25

You asked me more specifically whether
Maybe I misunderstood the

And so I think it's not -- it's really not a

JUDGE TARANTO:

I believe it's

But you don't -- you don't wantto say whether there was a cardiac event in 2021.
MR. DOLIN:

I -- not because there was one and

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I'm trying to hide it, but I do not want to discuss

2

Judge Newman's medical records, especially ones that are

3

entirely irrelevant to her mental abilities, for all the4reasons we have stated in our letter or our numerous

5

letters.

6

CHIEF JUDGE MOORE:

But just -- I just want to7

make sure we're clear.

You -- you have asserted she

8

didn't have a heart attack in the summer of 2021.

9

MR. DOLIN:

Correct.

10

CHIEF JUDGE MOORE:

You've admitted she's had a11

Pacemaker installed, but you won't tell us whether she

12

had a cardiac issue that resulted in her hospitalization

13

for any surgical procedures in 2021?

14

MR. DOLIN:

We've admitted that she had the15

Pacemaker installed for, I believe, over a decade,16

nothing to do with 2021.

17

quite some time.

18

She's had the Pacemaker for

CHIEF JUDGE MOORE:

But you won't acknowledge

19

whether she was admitted to the hospital, say GW

20

Hospital, on, say, June of 2022, or admitted to another21

hospital in May or June or July of 2021.

22

admit or deny or discuss, so you'll say she did not have23

a heart attack, and you can't imagine where we got that

24

idea.

25

MR. DOLIN:

You won't

Correct.

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CHIEF JUDGE MOORE:

But you won't say she wasn't

2

in the hospital during that same time for cardiac

3

issues.

4

MR. DOLIN:

Correct, although, of course, I

5wouldn't know that the Committee also did not indicate

6

as to where its belief that Judge Newman did have a

7

heart attack or had a cardiac stent placed, which is a8

fairly specific procedure --9

JUDGE PROST:

But we were -- okay, what we were10

talking about -- initially I started this by, okay,

11

we're moving away from a heart attack and the technical12

definition of a heart attack to then whether she suffers

13from any cardiac issues, which could have, as the14

symptoms for [the cardiac condition] indicate, could result

15

in confusion, dizziness, or light-headedness, fainting

16

or near fainting, fatigue, shortness of breath, slower

17

pulse, chest pain, et cetera.

18

MR. DOLIN:

Those are conditions associated with

19

[the cardiac condition].

20

example, dizziness or shortness of breath have to do

21

with one's ability to carry on and work as a federal

22

judge.

23

JUDGE TARANTO:

24

MR. DOLIN:

25

JUDGE TARANTO:

I'm not quite sure what, for

How about to finish up the list?

Sorry?
Finish the list.

Confusion, some

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1of the other items, you think that has nothing to do

2with -- with the issue of --3

MR. DOLIN:

4

JUDGE TARANTO:

5

MR. DOLIN:

It might, but there is no --- Judge Newman's ability?

Again, anybody -- you know, I have6

spoken to Judge Newman at length.

7

to Judge Newman at length.

8

have spoken to Judge Newman at length.

9several staff members, have indicated that she was at

10

any point confused.

11

JUDGE PROST:

Reporters have spoken

Former judges of this Court
No one, except

So, yes, it -But you have pinpointed the whole

12

heart issue, you have disputed it, and we focused on a

13

particular time frame as the Chief just mentioned, but

14

you are unwilling to disclose to us if any issues

15

related to [the cardiac condition] would require16

hospitalization or intensive medical care during that17

period that we had identified with respect to the heart

18

ailment.

19

MR. DOLIN:

Correct.

But also, I mean, I would

20

point out that the -- I think, again, I may -- I

21

understand that -- you know, in one of the orders, the22Committee said that the underlying question may come23

into the purview, as we're discussing, refusal --24

alleged refusal to cooperate, but, of course, again,

25

this hearing is focused on whether or not Judge Newman

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cooperated, and it's not to whether she had a good2

cause, and if she does not, what is the appropriate

3

sanction, so --4

JUDGE PROST:

Well, with respect to the5

cooperation aspect of the medical records, as our May

6

16th order indicated, what we said was those records --7

the medical records we were talking about would be

8

provided to the neurologist or people examining her, and9that seems to be kind of what happened even in, you

10know, whatever limited medical exam was performed by

11

Dr. Rothstein.

12

MR. DOLIN:

And I --

13

JUDGE PROST:

These records with respect to her

14

medication and coronary issues were provided to15

Dr. Rothstein, correct?

16
17

MR. DOLIN:

Dr. Rothstein was provided with suchrecords as he deemed necessary.

18

CHIEF JUDGE MOORE:

I guess that's a little bit

19

hard for me to understand.

Was Dr. Rothstein provided

20

with any medical records or is his statement about her

21

condition in his report based on her oral discussion of22

her medical conditions?

23

MR. DOLIN:

24

just moments ago.

25

information as he deemed necessary to conduct his

I will refer you to the answer I madeDr. Rothstein was provided with such

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examination.
JUDGE TARANTO:

And you think that that's an3answer to the question, what the source of the

4

information was?

5
6

MR. DOLIN:

That I -- I believe that is the --the answer that -- that I can give.

7

JUDGE TARANTO:

8

MR. DOLIN:

Okay.

Again, I'm -- for reasons stated

9

before, Your Honor -- and I do mean no disrespect -- but

10

for reasons stated before, we're not willing to discuss

11

Judge Newman's medical records with this Committee --

12
13
14
15
16
17
18

JUDGE TARANTO:

And remind me what those reasonsare, please.
MR. DOLIN:

Again, this Committee -- again, thisCommittee -JUDGE TARANTO:

You keep saying "again," and if

you can state it so that I understand it clearly.
MR. DOLIN:

We believe this Committee is

19

improperly constituted.

We believe this matter should20

not stay with the Federal Circuit.

21

Committee has not made a prima facie case as to why the22

evaluation is needed in the first place.

We believe this23

So, for example, if you will allow me to24

sidetrack a little bit, one of the main points that the25

Committee has made on numerous occasions was that Judge

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Newman has extraordinary delays.

2

JUDGE TARANTO:

And I need to back up, get off

3

the statistical point, or before we get to it, do I

4remember your response -- your July 5th response5

objected to providing information to or agreeing to6

undergo examinations with the two medical professionals

7

that our medical consultant identified, partly -- maybe

8

entirely -- anyway, you say because there hasn't been

9

some sort of Daubert qualification of them?

10

Is it your position that the Daubert standard

11

applies to the examiners or other submitters of expert

12

evidence to us?

13

MR. DOLIN:

My position is that we have no idea14

of who these people are or why -- on what basis they15

were chosen --16

JUDGE TARANTO:

Can you answer the question about

17

whether you're asserting that the Daubert standard

18

applies?

19
20
21
22
23
24
25

MR. DOLIN:

Well, I think if you let me finish myanswer, I think -- I'll get to the answer -JUDGE TARANTO:

Just try to answer the directquestion.
MR. DOLIN:
get to it.

I understand, but I promise I will

Give me just a little bit of leeway.

We don't know who these people are, we don't know

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why they were chosen, and, therefore, we have no idea

2

whether they are or are not experts.

3

And so whether it's the full Daubert that applies

4or any kind of smaller version of it, I think the5

general idea that people doing the examination and then6

providing supposedly an expert report to the Committee

7

have -- we have to have some assurance that these are8

actually qualified people, and we have -- that they're

9

not biased, that they're not -- and we have no idea on

10what basis these individuals were chosen.

11

So I don't -- I -- I think, ultimately, when

12

these reports are submitted and they're considered by

13

the Committee, I think Daubert has application

14

whether -- you know, whether it's verbatim or it's

15

just -- or it's general idea, but, you know --16

JUDGE TARANTO:

So let me ask you then about

17

that, and this is now turning back to Dr. Rothstein.

18

The essence of Daubert is that qualifications are in the

19

beginning, that the substance of the testimony must have20

a sound foundation, a reliable foundation, and that it21

is for that reason absolutely standard, that when the22expert testifies, he or she has to disclose the basis,23

the materials he or she looked at and what their24

reasoning was from them.

25

So if that's right, how is it that you think it's

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irrelevant what materials Dr. Rothstein was supplied?

2

MR. DOLIN:

I don't think it's irrelevant.

3

but for reasons stated previously -- and, again, of

4

course, Dr. Rothstein is not testifying --5

JUDGE TARANTO:

So you don't think it's

6

irrelevant.

7

outfits that doesn't deserve to get that answer.

You just think that we're illegitimate

MR. DOLIN:

8

I --

I don't think it's illegit -- I

9wouldn't call this an illegitimate outfit, Your Honor.

10

I think this Committee is improperly constituted and is11

an improper body to adjudicate this matter, and because

12of the -- both the bias --13

CHIEF JUDGE MOORE:

Counsel -- Counsel, in your14

brief, you pointed us to Dr. Rothstein's evaluation of

15

Judge Newman.

16

cognitive function is sufficient to continue her

17participation on the Court, and then you expressly told

18

us that this examination should obviate the need for

19further testing.

20

You told us his conclusion, that her

This is a hearing about whether it was misconduct

21

for Judge Newman to refuse to undergo the medical

22

testing we requested.

23

was, no, it wasn't misconduct, because she did different

24

testing with a different person, and that should

25

suffice.

Your answer in your brief to us

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Why, then, would it be improper for us to seek to2know the basis upon which that other testing was

3

rendered, like the material that doctor considered in

4

forming his opinion?

5

testing in lieu of the testing we requested.

6

don't we then have an opportunity to inquire about the7reliability or the basis of that testing?

8

MR. DOLIN:

You've asked us to accept that
So whyYour Honor, respectfully, I would

9

again say that this Committee is not a proper body to

10

conduct an evaluation or examination for these11

proceedings because --12

JUDGE TARANTO:

And from that answer, what you

13

submitted from Dr. Rothstein counts for nothing, because

14

it cannot be examined under Daubert standards.

15

MR. DOLIN:

What we have submitted from

16

Dr. Rothstein is -- mostly was a point of information

17

that the Committee could choose to credit or not credit18

as it wishes.

19

inquiry as to Judge Newman's cooperation, or lack20

thereof, her reason for it, and the appropriate sanction

21

for doing so if she didn't cooperate.

Our response was to the Committee's

22

We wanted the Committee --23

CHIEF JUDGE MOORE:

But didn't you tell us in24

your July 5th submission that this Dr. Rothstein report

25

should put an end to the concern about Judge Newman's

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medical history and should, therefore, obviate the2concern of misconduct for not taking the testing that3

was required?

4

MR. DOLIN:

I've mentioned the report or we've

5

mentioned the report as part of the broader information6

to the Committee that should, in our view, frame this7

proceeding that should have never started to a close.

8

If you look at --

9
10
11

CHIEF JUDGE MOORE:This examination should

obviate the need for any further testing.
MR. DOLIN:

Correct, and any further proceedings

12

before this Committee or this Judicial Council, because

13

if you -- looking at Judge Newman's opinions submitted

14

since March, looking at Judge Newman's public

15

statements, looking at this evaluation, there is no16

basis to conclude that she's in any way disabled.

17

CHIEF JUDGE MOORE:

18

whether she's disabled, Counsel.

19

or not this Committee had a reasonable basis to order20

the medical testing, to ask to interview her, and to21

request her medical records be provided to someone who

22

would evaluate her.

23

whether she's disabled.

24
25

MR. DOLIN:

Well, this is not about
This is about whether

This is not a proceeding about

So can we get -- and so this goes tothe answer I've provided to you, Judge Taranto, but can

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we go to the basis --2

JUDGE TARANTO:

Sure, we can get to that in just3

one second.

4

about.

5

issued an order two days later saying please supply us

6three categories of documents, the unredacted version of

7

Dr. Rothstein, the actual filled-out MoCA form, and then8

the category of written materials given to or relied9on -- I'm not sure what the word is -- accepted by

10

Dr. Rothstein, and in your July 12th response, you say,11

as to that last category, the medical records, we're not

12going to give you any more for the reasons we've already13

discussed.

Just one thing that I wanted to make sure

After your July 5th responses, you know, we

14

But the category, what we asked you about or15

directed you to supply July 7th is not just medical

16

records.

17

would include all written materials, would include all18of the written materials that you have from this19

proceeding, declarations and other things that supplied20

the basis for concern about Judge Newman.

21

12th letter, it doesn't say anything at all about that22

category.

23

Dr. Rothstein?

24
25

It was all materials.

So, for example, that

In your July

Were those materials supplied to

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JUDGE TARANTO:

All of the written materials that2

you -- yes, that were a part of this proceeding that3

have been given to you as undergirding the -- in4particular the May 16th order for --5

MR. DOLIN:

It is -- it is my understanding that6materials that are sealed were not provided to

7

Dr. Rothstein.
CHIEF JUDGE MOORE:

8

What about the orders?

Were

9

any of the orders which have been made public provided

10

to Dr. Rothstein?

11

MR. DOLIN:

12

orders either.

13
14

CHIEF JUDGE MOORE:

MR. DOLIN:

I do not know whether he reviewed the

CHIEF JUDGE MOORE:him?

But were they provided to

You don't know whether he reviewed them --19

MR. DOLIN:

20

CHIEF JUDGE MOORE:

21

MR. DOLIN:

22

CHIEF JUDGE MOORE:

23

I couldn't hearorders either.

17
18

I'm sorry.

you.

15
16

I don't know that he's reviewed theI was not in the room, Your Honor.
Pardon?

I was not in the room, Your Honor.
Oh, so you don't know if

Judge Newman provided him with those orders?

24

MR. DOLIN:

I can't comment on that.

25

JUDGE TARANTO:

You can't?

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MR. DOLIN:

7/13/2023
I can't comment on that as to whether

2

or not -- whether or not they were provided or whether3

he reviewed them or -- et cetera.

4

reviewed those materials that he deemed in his

5professional judgment appropriate before administering

6

the test and reaching his conclusion and writing the7letter.
CHIEF JUDGE MOORE:

8
9just a little bit?

10

Sorry.

11

MR. DOLIN:

I do know that he

Mr. Dolin, can you speak up

I'm having trouble hearing you.

He was provided such materials as he,12

in his professional judgment, of decades of experience,13

and being a full professor at George Washington School

14of Medicine, deemed appropriate to conduct his

15

examination and reach his conclusions, and I was not in

16

the room, and I'm -- you know, despite my medical

17

degree, I am not going to second-guess a full professor

18

of neurology --19

CHIEF JUDGE MOORE:

Well, let me ask you a couple

20

of questions about his report.

21

here today prepared to discuss the report and his

22scoring of the report.

23

either had at the time of his evaluation a cast on her

24

arm or her right wrist?

25

MR. DOLIN:

We did ask you to comeIs it true that Judge Newman

It is.

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CHIEF JUDGE MOORE:

2

was, therefore, unable to write.

3

MR. DOLIN:

And he says in two places she
Is that correct?

That's correct.

She was advised

4by -- she was advised by her orthopedic surgeon not to

5hold a pen until the bone was healed.

6

CHIEF JUDGE MOORE:

7

healed.

8

the MoCA, correct?

9

MR. DOLIN:

10

CHIEF JUDGE MOORE:

So not to hold a pen until it

So she was not able to do any written part ofCorrect.
Correct, okay.

So I am going11

to provide you with the MoCA, which is the same MoCA --12

you can step forward if you don't have --13

MR. DOLIN:

14

CHIEF JUDGE MOORE:

15

MR. DOLIN:

16

CHIEF JUDGE MOORE:

17

I have it.
You have it?

I have it.
I think you have a copy.

Sothis is the same thing we provided to you as an exhibit.

18

MR. DOLIN:

Yep.

19

CHIEF JUDGE MOORE:

20

MR. DOLIN:

21

CHIEF JUDGE MOORE:

And this is the MoCA.

Yep.
As you can see, across the22

top, there are three portions of the MoCA that require23

writing.

24

not a doctor, so I am going to use layman's language.

25

There is what I'll call connect-the-dots.

MR. DOLIN:

Fair enough.

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CHIEF JUDGE MOORE:

Connect-the-dots on the left,2

and there's copy a cube, and Dr. Rothstein noted that3

she couldn't do either of those because she can't write4

at all, right?

5

MR. DOLIN:

Yes.

6

CHIEF JUDGE MOORE:

7

worth one point, correct?

8

MR. DOLIN:

9

CHIEF JUDGE MOORE:

Okay.

So each of those is

Um-hum, yep.
Okay.

Then you have to draw

10

a clock where you actually fill in all the numbers and11

put the hands of the clock on the correct time that's

12

assessed.

13

If she can't write, how could she do that?

MR. DOLIN:

Again, Your Honor, I'm -- I can't

14comment on how she accomplished that task.

15

comment on Dr. --16

CHIEF JUDGE MOORE:

17

MR. DOLIN:

18

CHIEF JUDGE MOORE:

I can

Did she accomplish that task?

Again, I was not in the room.
Okay.

I --

So do you understand19

on the face of Dr. Rothstein's own report, there seems

20

to be an inconsistency?

21

she was unable to write in two places.

22

that she's been instructed by an orthopedic surgeon not

23

to even hold a pen.

24

MR. DOLIN:

25

CHIEF JUDGE MOORE:

The inconsistency is he said
You confirmed

Yes.
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test that require writing.

2

couldn't do two of the three of them because she

3

couldn't write, so how did she do the third?

45

MR. DOLIN:

Dr. Rothstein said she

I suspect that there are ways to do

the third by either having the clock identified --6

JUDGE PROST:

7

MR. DOLIN:

Again, I'm sorry, I can't --I suspect there are ways to do it.

8Instead of drawing it, you have a clock identified, as

9well as time identified, et cetera.

10

CHIEF JUDGE MOORE:

11

there's not on the MoCA website.

12

MoCA website itself explains exactly how to administer13

the test when you're unable to write?

14

you with a copy of it.

Actually, it turns out
Do you know that the

Let me provide

Here you go.

15

MR. DOLIN:

Ah, was --16

CHIEF JUDGE MOORE:

And this is what they say all

17

qualified practitioners should do when a patient is

18

unable to write.

19

MR. DOLIN:

So, with respect, Judge Moore --20

CHIEF JUDGE MOORE:

21

MR. DOLIN:

22

CHIEF JUDGE MOORE:

23

MR. DOLIN:

The MoCA website is -- yes?

-- with respect, Judge Moore -Yes, yes?

-- if it were up to me, I would rely24

on several decades' worth of experience of a full25

professor of neurology at one of the nation's leading

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medical schools as opposed to a --2

CHIEF JUDGE MOORE:

Counsel, this whole professor3of neurology may generally be great, but his own report4

is internally inconsistent.

5in two places.

6

pen.

7

connect the dots, and she couldn't copy a cube, but then8

when it comes to drawing a clock, which is required by

9

the test to be drawn by the patient -- if the patient

10

can't write, according to the MoCA, they can't do any of

11those three questions according to the MoCA's own

12

rubric.

It says she couldn't write

You've confirmed she couldn't hold a

He says because she couldn't write, she couldn't

So I'm wondering whether or not it's possible

13
14

that he erred in his report because he said she couldn't

15

write at all, but then he seems to have given her full16

credit for drawing a clock.

17

MR. DOLIN:

18

CHIEF JUDGE MOORE:

Of course, anything is possible.
But that's why the Committee

19

has concerns and would like to see the document, is20

because his report is internally inconsistent on its

21

face.

22

MR. DOLIN:

Okay.

If you'll permit me to finish

23

my answer I was beginning to go to, with respect, I

24

would put some trust in the -- or put trust in a full25

professor of neurology and at one of the nation's

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leading medical schools over a -- a well respected2

judge's interpretation of a MoCA website.

And so I

3understand what you've read, Judge Moore.

Nevertheless,4

I suspect that Judge -- that --5

CHIEF JUDGE MOORE:

6

MoCA test result, have you?

7

MR. DOLIN:

8

CHIEF JUDGE MOORE:

Why -- you haven't seen theI have not.
Okay.

So you haven't seen

9

it.

He says that she couldn't write, so she couldn't do

10

the written portion.

11

to be concerned that possibly he mis-scored the test

12

since he has given her credit for portions that require

13

writing on its face?
MR. DOLIN:

14

You don't think it's fair for us

Draw a clock?

Again, I suspect -- I suspect that

15

Judge -- again, that -- not Judge -- that Dr. Rothstein

16

knows how to administer this test, knows how to score

17

it, and he was advised before -- in fact, when the test18

was scheduled, he was advised before that Judge Newman

19

was in a cast, and he asked whether or not we should

20

wait --

21

JUDGE TARANTO:

Would you agree -- I don't know

22

what kind of experience you have with respect to23expert-laden cases -- that highly credentialed experts

24

sometimes make mistakes?

25

MR. DOLIN:

Of course.

Everybody makes mistakes,

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including this Committee, but --2

JUDGE TARANTO:

And we don't have the basis for3

determining that in a document that you submitted to4

obviate concern here.

5

MR. DOLIN:

Perhaps, but, again, I think I would

6

go back to the point that this shouldn't be here in the

7

first place, that that's my -- I do want to get back to

8

the numbers, and so because Judge Moore asked --9

JUDGE PROST:

Well, before you do that, just a10

quick question, because you mentioned in passing and you

11

moved over it, and you made the statement -- I think I'm

12

accurately stating it -- that we had no idea who these13

people were, the people that we identified as --14
15

MR. DOLIN:
does.

No, we don't.

I'm sure the Committee

We don't have any idea.

16

JUDGE PROST:

Yes, yes, excuse me.

17

And did we not, in our order, when we identified

18

Dr.

19

to contact him if you had any questions about anything,20

and did you take advantage of that?

21

concern that you don't know either his qualifications or

22

the qualifications of the doctors that were being

23

proposed, did you take advantage of going and asking

24

him?

25

, give you a way, suggest that you feel free

MR. DOLIN:

If you had a

No, because one of the -- because we

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would also -- we would not ever learn as to on what2

basis was he selected.

3

did not contact Dr.

So, no, we don't know -- no, we.

CHIEF JUDGE MOORE:

4

Did you do any other research5

at all on your own to ascertain the credentials of the

6

doctors whose names you were given as far back as April

7

7th?

8
9
10
11
12

MR. DOLIN:

I have looked at their website

profiles.
CHIEF JUDGE MOORE:

And did that cause you tohave reason to be concerned about their credentials?
MR. DOLIN:

It didn't suggest to me that they are

13

either -- you know, that they -- they have their14

diplomas, they have done their residency, they have15

their licenses.

16

That's all I know.

JUDGE PROST:

Did you ask or inquire of17

Dr. Rothstein if he had any information?

18

renowned specialist that you've identified.

19

be -- wouldn't he be an appropriate person to inquire in20

terms of the credentials of these other people --21

MR. DOLIN:

22

JUDGE PROST:

23

MR. DOLIN:

24

JUDGE PROST:

25

MR. DOLIN:

He's aWould heNo.
-- if you know and trust him?

No.
He wouldn't be?

No.

We would not ask Dr. Rothstein

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of his opinion of some other doctor in a different

2state.

3

CHIEF JUDGE MOORE:

Okay.

Just to be clear,

4

Judge Prost said you know and trust him.

5make it clear for you.

6

record --For your purposes, for the7

MR. DOLIN:

8

CHIEF JUDGE MOORE:

9going.

10

correct?

11

I just want to

I don't.
Yes, that's where I was

You didn't -- you didn't choose Dr. Rothstein,

MR. DOLIN:

I did not.

As with every American

12

who seeks medical care, generally in this country we

13pick our own providers, and Dr. Newman picked this14

provider.

15

CHIEF JUDGE MOORE:

16

MR. DOLIN:

17

Her name is Judge Newman.

She is actually a doctor as well.

She is a Ph.D.

18

CHIEF JUDGE MOORE:

To your knowledge, did she

19

have a prior relationship with Dr. Rothstein before this

20

test?

21

MR. DOLIN:

She knows -- she has known

22

Dr. Rothstein for some time.

23

CHIEF JUDGE MOORE:

24

MR. DOLIN:

25

CHIEF JUDGE MOORE:

Personally or professionally?

Both.
Does that raise any concerns

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with you about whether or not he's rendering an

2

independent judgment?

3

MR. DOLIN:

It does not.

He rendered this4

judgment as -- again, in his capacity as a professor of

5neurology.

6on the line --78
9

He put it on his letterhead.

CHIEF JUDGE MOORE:

His license is

But he has both a personal

and a professional relationship with her.
MR. DOLIN:

But that is not surprising.

I mean,10people often have both a personal and professional -- I11

to this day have a professional relationship -- personal

12

relationship with my pediatrician.

13

surprising.

14

CHIEF JUDGE MOORE:

15

pediatrician?

16

some levity.

17
18

MR. DOLIN:

Sometimes.

I'll give you an answer.

Sometimes.
CHIEF JUDGE MOORE:

20

MR. DOLIN:

22

Are you still seeing theThat was a joke, just trying to insert

19

21

That is not

Okay.

Although not recently because she

retired.
CHIEF JUDGE MOORE:I really want to give you a

23

chance, and I know that it says three minutes left, but

24

I will extend the time because on several occasions you

25

sought to try to move to something that you wanted to

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talk about, and we kept you on the topics that we wanted2

to ask questions about.

3
4

So I feel like if there's something you wanted tomove to, I want to give you the chance to --5

MR. DOLIN:

No, I am here to answer the6

Committee's questions, but I guess two points, and I'll

7

try to make them quick.

8

suppose, of this Committee throughout was Judge Newman's

9

alleged delays in production of the opinions, including

10

that compared to an average time for -- for an average

11judge of this Court and her, the difference between

12

those average times is 141 days.

13

between 199 that it takes Judge Newman and the 58 that14

it takes an average judge --One of the main concerns, I

15

CHIEF JUDGE MOORE:

16

MR. DOLIN:

If you do the math,Fifty-three.

-- 53, so it works out to be 141

17

days.

18

calculates that the average difference between a19unanimous opinion and an opinion with a dissent is 143

20

days.

21

on average, than an opinion with a dissent or a22

concurrent opinion.

23

with Judge Newman's delays given the fact that she

24dissents in more than half of the cases.

25

In a recent paper by Dr. Katznelson, he

So a unanimous opinion issues 143 days earlier,That seems to track pretty well

So her dissents -- her delays are not

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extraordinary, but even more important -- and that's

2leaving aside the Dr. Katznelson paper -- this is based3on the Court's own data.

42020 and 2021, where there was apparently no suspicion

5of any disability, and 2021 to 2023, have been reduced.

6

She's now --7

Judge Newman's delays between

CHIEF JUDGE MOORE:

Counsel -- Counsel, her

8sittings were reduced.

9

second period where the average judge sat 128.

10

closer to the normal level of everyone else in the11earlier period.

12

respect, to why she might have been able to get the same

13

number of opinions out quicker is because she sat on,

14

like, half the cases than she had the previous time

15

period compared to how --16

MR. DOLIN:

She satSo the explanation, with all due

17

not her choice.

18

understand how --19

She sat 65 cases through the

Of course, Judge Moore, but that was

You -- it's hard -- it's hard for me to

CHIEF JUDGE MOORE:

You say that was not her

20

choice?

21

to be clear, was any period of time in which she was22

prevented from sitting by any of us.

23

None of the time period that we measured, justMR. DOLIN:

My understanding, based on my time in24

clerking on the Court and my conversations with Judge

25

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42Complaint No. 23-90015

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the assignment -- and also reviewing the clerical2

procedure -- the assignment is done by the Chief Judge

3

together working with the Office of the Clerk.

4

I'm wrong.

5

CHIEF JUDGE MOORE:

6

MR. DOLIN:

7

CHIEF JUDGE MOORE:

8
9
10

Maybe

Completely false.

So...
The Chief Judge has no input

whatsoever -MR. DOLIN:

Not assignment, but assignment to thepanels, assignment to the panels, for how many --11

CHIEF JUDGE MOORE:

12

Chief Judge has no input whatsoever.

13

their own selection.

14

MR. DOLIN:

15

misunderstanding.

That's completely false.

Fair enough.

The

Every judge does

I apologize for that16

And the second point that --17

CHIEF JUDGE MOORE:

And just to be clear, the18

assignment of cases is random in the event that somehow

19

this transcript didn't make that clear.

20

chooses their individual cases --21

MR. DOLIN:

22

CHIEF JUDGE MOORE:

No judge

Of course.
-- and the assignment of

23

cases to each panel is random, but the judge's choice to24

sit or not sit has always been the judge's choice

25

prior -- during these time periods that were measured.

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MR. DOLIN:

7/13/2023
Well, fair enough, and then I

2apologize for my misunderstanding and my misreading of3

the clerical procedures.
I guess -- I know I'm out of time, but I did want

4
5

to touch on the potential sanctions.

6

in --

7

JUDGE PROST:

8

MR. DOLIN:

9

JUDGE PROST:

10

MR. DOLIN:

As we indicated

I'm sorry?

Potential sanctions.
Thank you.

As we indicated in our letter, not11

only is the requirement that Judge Newman sit for12

medical exam unprecedented, has never been done, I know

13

this Committee cited the Adams case.

14

actually did sit for the medical exam and had no15

sanctions imposed for it.

16

JUDGE TARANTO:

Judge Adams neverI'm sorry, but there was an order17

upheld by the Judicial Conference Committee that18

required him to do so.

19

he reformed his behavior, and the Judicial Council,

20

after a certain waiting period, decided that the21

proceeding didn't need to go forward.

22

an affirmed order compelling in that case a psychiatric,

23

I think, examination, correct?

Then on remand he -- basically

So there has been24

MR. DOLIN:

Which he declined to do and received

25

no sanction for it.

Even on remand, he declined to sit

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for -- because on remand, the judicial investigating --2

the Special Committee requested that he sit for the exam

3

again.

4

Investigative Committee recommended a six-month5suspension, which the Judicial Council of the Sixth

6

Circuit refused to endorse.

7

UNIDENTIFIED:

8

MR. DOLIN:

He declined to do it again.

The Special

Um-hum.

So the requirement -- so Judge Newman

9would be the first Judge in the history of this country

10

to sit for a forced medical examination, okay?

11

But on the sanctions, to get back to the six

12months, one, of course, our position is no sanctions are13

warranted because we do not believe that Judge Newman

14either refused to cooperate or that, if she did, that15such refusal was without a good cause, but to the extent

16that this Committee or this Judicial Council believes

17that a sanction is warranted, we would note that Judge

18

Newman has already been suspended from sitting on cases

19

for six months.

20

My understanding is that the September calendar

21

is out, so it would be April, May, June, July, August,

22

September -- six months.

23

Committee to issue its report, then, of course, we will24

have 21 days to review it and file our appeal to the25

Judicial Council, et cetera, et cetera.

If it takes some time for thisThat gets us

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probably into the October calendar.

2

point, the sanction imposed, even taken into Judge

3

Adams' precedent, they suggested six months, and4certainly no more is appropriate here.

5

So at least on that

I'm happy to answer any other questions, but I do

6have one question for the Committee if it will permit

7

me, and this goes back to, Judge Moore, at the very

8

beginning you said this matter is confidential, and I

9said I understand, but I do want to go back to that.

10

We would like some guidance from the Committee as

11

to what can -- obviously we understand that no witness

12

names or witness statements can be discussed, I

13

understand that, and we have tried to keep that -- you

14

know, to keep that within that order, but we would like15

to have some guidance as to which part of, beyond the16

fact that this hearing has occurred, can be discussed.

17

CHIEF JUDGE MOORE:At this point, nothing.

You

18

can submit a 23(b)(7) request to have the transcript

19

made public.

20

certain it's redacted.

21

Judge Newman's personal medical information was

22

discussed, and I'm not 100 percent positive what about

23

that you would like to have redacted or not have24

redacted.

25

discussed at all, but in any event, you know, I think

You and I can work collectively on making
For example, quite a bit of

I don't remember if witness names were

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1

that probably we should wait and see the transcript and2then collectively work together to ensure that what is3

released is something that we're both comfortable with.

4

Does that sound reasonable?

5

MR. DOLIN:

That sounds reasonable.

I'm

6

certainly happy to put in a formal 23(b)(7) request.

7

think I've made it in my letter -- in my last letter to8

the Committee, as well as here orally -CHIEF JUDGE MOORE:

9
10

MR. DOLIN:

12

CHIEF JUDGE MOORE:

Right.
-- to have the transcript

made public --14

MR. DOLIN:

15

CHIEF JUDGE MOORE:

16

If you want me to, I will

just assume this oral request is a 23(b)(7) request --

11

13

I

After --- and if it's okay withyou --

17

MR. DOLIN:-- right, correct.

18

CHIEF JUDGE MOORE:-- I would like to review the19transcript first to ensure that nothing about it

20

contains information that should be otherwise kept

21

completely confidential.

22

MR. DOLIN:

23

And then, with that, I guess I'll close with

Of course, and vice versa.

24

just, you know, again, reiterating our request that our25

letter brief, which, of course, the Committee can, you

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know, edit for -- I don't think that there's any witness

2

names there, but the letter brief as well as

3everything -- all the submissions up until now be

4

released pursuant to 23(b)(7), and we have made those5

requests in the submissions themselves.

6

CHIEF JUDGE MOORE:

7

Okay.

8
9
10

Anything further?

Thank you, Counsel.

This case is taken

under submission.
(Whereupon, at 2:51 p.m. the hearing was
adjourned.)

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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Complaint No. 23-90015
1

7/13/2023
CERTIFICATE OF REPORTER

2
3

I, Susanne Bergling, do hereby certify that the4foregoing proceedings were recorded by me via stenotype

5

and reduced to typewriting under my supervision; that I

6

am neither counsel for, related to, nor employed by any

7of the parties to the action in which these proceedings8

were transcribed; and further, that I am not a relative

9

or employee of any attorney or counsel employed by the10parties hereto, nor financially or otherwise interested

11

in the outcome of the action.

12
13
14
15
16

s/Susanne Bergling

17

SUSANNE BERGLING, RMR-CRR-CLR

18
19
20
21
22
23
24
25

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Exhibit 15Aavailable at, https://cafc.uscourts.gov/
wp-content/uploads/JudicialMisconductOrders/
July%2013,%202023%20Redacted%20Audio%
20Recording.mp3

Exhibit 16

From:To:
Cc:
Subject:
Date:

Chief Judge Kimberly A. Moore
Judge Richard G. Taranto; Judge Sharon Prost;
Re: interview
Tuesday, April 11, 2023 3:54:09 PM

Yes, I will be in Your Honor's chambers at 1:00 tomorrow. Thank you for the flexibility.
Regards,

From: Chief Judge Kimberly A. Moore
Sent: Tuesday, April 11, 2023 3:50 PM
To:
Cc: Judge Richard G. Taranto;
Subject: RE: interview; Judge Sharon Prost

Would 1:00 pm tomorrow work?
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit
From:
Sent: Tuesday, April 11, 2023 3:47 PM
To: Chief Judge Kimberly A. Moore
Cc: Judge Richard G. Taranto;
Subject: Re: interview

Judge Sharon Prost

Hello Chief Judge Moore,
I appreciate the urgency of Your Honor's need to interview me in this matter. Would it bepossible to conduct this interview tomorrow morning, April 12th? I have duties andcommitments in my role as Judge Newman's clerk in New York for the remainder of thisweek. Please let me know if this would be suitable.
Regards,
Law Clerk to the Honorable Pauline Newman

From: Chief Judge Kimberly A. Moore
Sent: Tuesday, April 11, 2023 2:40 PM

To:
Cc: Judge Richard G. Taranto; Judge Sharon Prost; Chief Judge Kimberly A. Moore;

Subject: interview

In connection with an on-going investigation being conducted by our court, theundersigned judges need to interview you regarding Judge Newman. There issome urgency to this matter and we propose to interview you at 10:00 am on
Thursday, April 13, 2023 in 901. Your presence and cooperation is required by
the court. At this stage of our investigation, we hope that this interview can be
conducted informally. Please confirm by close of business today that you willattend.
Chief Judge Kimberly Moore
Judge Sharon Prost
Judge Richard Taranto

The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

1

COURT OF APPEALS FOR THE FEDERAL CIRCUIT

2
3

PROCEEDING BEFORE

4
5

CHIEF CIRCUIT JUDGE KIMBERLY A. MOORE

6CIRCUIT JUDGE SHARON PROST

7

CIRCUIT JUDGE RICHARD G. TARANTO

89DEPOSITION OF

10
11

Wednesday, April 12, 2023

12

9:00 a.m.

13
14
15

ALSO PRESENT:

16, Esq.

17, Witness

18, Esq.

19
20
21
22
23
24
25

Reported by:

Susanne Bergling, RMR-CRR

2Court of Appeals for the Federal Circuit

4/12/2023

1

P R O C E E D I N G S

2

-

3
4

-

-

-

-

(Proceeding called to order
9:06 a.m.)

5

:

I'm

.

I

6

represent

7

proceeding, and I wanted to say that there was

8

improper service of the subpoena.

9

given reasonable notice.

10of less than 48 hours, which is not considered a11

reasonable period, and she was also served bywith respect to thisShe was not

She was given notice12, who is an agent of the13

Court, and the Court is a party to this action,

14

and, therefore, is not a reasonable person to15

choose to give service.

16

Also, the lack of timeliness imposed an

17

undue burden on my client.

18

CHIEF JUDGE MOORE:19

LAW CLERK:

Okay.
, if you will

20

remain seated and raise your right hand, please.

21

Whereupon --22
23

a witness, called for examination, having

24

previously been duly sworn, was examined and25

testified further as follows:

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Court of Appeals for the Federal Circuit

4/12/2023

1

EXAMINATION

2BY CHIEF JUDGE MOORE:

3

Q.

Please state your name.

4

A.

.

5

Q.

6

A.

And your address?
,

7

.

8

Q.

And what is your current job?

9A.

I am aclerk to the Honorable

10

Pauline Newman at the U.S. Court of Appeals for11

the Federal Circuit.

12Q.

If you don't understand any questions

13

that I ask today, please let me know and I will

14

rephrase them.

15

asking for clarification, we will assume you

16

understand the question.

17

that?

18

A.

Yes, I do.

19

Q.

Do you understand you're under oath20

today?

21

A.

I do.

22

Q.

As a judiciary employee, you're

If you answer a question without

Do you understand23

required by law to cooperate with this24

proceeding, including answering our questions

25

here today.

Do you understand this?

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Court of Appeals for the Federal Circuit

4/12/2023

1

A.

I do.

2

Q.

How long have you been working with

3

Judge Newman?

4

A.

Three years and a few months.

5Q.

We understand that you are her

6clerk.

7

your responsibilities are?

8
9
10
11
12

A.

Can you tell us about that role and what

I am going to invoke my right under theFifth Amendment to avoid self-incrimination.
Q.

You can't tell us what yourresponsibilities are in your job?
A.

I am --

13
14:
and answered.

15
16

Objection.
:

How does this haveanything to do with a criminal --1718

I am going to say asked

:
case.

This is not a criminal

It's a civil case.

19:

Exactly.

20:

You can invoke the21

Fifth Amendment in a civil case.

22

:

23

for thinking they may be a crime involved --

24

:

25

If there is some basis

That's not the --actually not the law.

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Court of Appeals for the Federal Circuit
1

4/12/2023

CHIEF JUDGE MOORE:

You are refusing to2tell us what your responsibilities are for Judge

3

Newman?

4

THE WITNESS:

I am invoking my5privilege under the Fifth Amendment to avoid6

self-incrimination.

7

JUDGE PROST:

Are you aware whether or

8

not there any's document in Personnel or in

9chambers that would describe the duties of your10

position?

11:

Objection.

There's too

12

many people questioning the witness.

13

only one person who's allowed to question the14

witness at one time.

There's

15

CHIEF JUDGE MOORE:

16

respect, that's not correct.

17

that's not correct.

18

proceeding.

19

The committee is required to be three people,

20

and we are required to all participate.

21

are incorrect under the rules of the proceeding.

With all due
Under our rules,

This is not a formal court

This is a special investigation.

So you22:

23

we have one person questioning her at one time,24

because you're asking and answering the same

25

question repeatedly.

All right.

Well, canFor The Record, Inc.
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CHIEF JUDGE MOORE:No.

You can lodge

2

your objection if you wish, but we are going to3

proceed, because this is an interview by a4

special committee under a judicial proceeding.

5

:

6

too many people questioning the witness, and7

asked and answered.

8

JUDGE PROST:

All right.

I object toMaybe I was

9misinterpreted.

10the one previously asked.

11

there was documentation she's aware of in our

12

Office of Personnel or in her chambers that13

describes the duties of a law clerk in her

14

position.

My question was not the same as
I simply asked if

15

THE WITNESS:

16

CHIEF JUDGE MOORE:

I don't know.
Do you manage or17otherwise review the work of other clerks in

18

chambers?

19

THE WITNESS:

I, on advice of counsel,

20

am invoking my Fifth Amendment privilege to21

avoid self-incrimination.

22
23
24
25

CHIEF JUDGE MOORE:

How often do youcome into the building?
THE WITNESS:

On advice of counsel, I

am invoking my Fifth Amendment privilege.

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CHIEF JUDGE MOORE:

Do you ever2communicate with Judge Newman?

3

THE WITNESS:

By advice of counsel, I

4

am invoking my Fifth Amendment privilege against

5

self-incrimination.

6

CHIEF JUDGE MOORE:

How could you

7

incriminate yourself if -- by answering a8question of whether you communicate with the9person that you work for?

10
11
12

:
Argumentative.

Objection.

You can answer.

THE WITNESS:

I am going to invoke my13

right under the Fifth Amendment to avoid

14

self-incrimination.

15

CHIEF JUDGE MOORE:

How could you

16

incriminate yourself by answering a question

17

about whether you communicate with the person

18that you report to?

19

THE WITNESS:

I am going to invoke my20

right against self-incrimination under the Fifth

21

Amendment.

22

CHIEF JUDGE MOORE:

23

see Judge Newman in person?

24

THE WITNESS:

25

Fifth Amendment right.

How often do you

I am going to invoke my

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2

CHIEF JUDGE MOORE:

THE WITNESS:

4

Fifth Amendment right.

5

I am going to invoke my

CHIEF JUDGE MOORE:

Do you ever talk to

her on the phone?

7
8

Do you ever meetwith her by Zoom?

3

6

4/12/2023

THE WITNESS:

I am going to invoke my

Fifth Amendment.

9

CHIEF JUDGE MOORE:

10

assigned in your chambers?

How are cases

11

THE WITNESS:

12

Fifth Amendment right on that.

13

I am going to invoke my

CHIEF JUDGE MOORE:

How many bench

14

memos would you estimate that you have drafted

15

for Judge Newman in the last year?

16
17

THE WITNESS:
Fifth Amendment.

18
19

CHIEF JUDGE MOORE:

THE WITNESS:CHIEF JUDGE MOORE:

Does Judge Newman

discuss cases you?

24
25

I am going to invoke my

Fifth Amendment.

22
23

Do you draft

opinions for her?

20
21

I am going to invoke my

THE WITNESS:

I am not going to answer

that.

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2:
question.

3

4/12/2023
Let her finish the

Let her finish.

CHIEF JUDGE MOORE:

Does Judge Newman

4

discuss cases with you in advance of oral

5

argument?

6
7

THE WITNESS:

I am going to invoke my

Fifth Amendment.

8

CHIEF JUDGE MOORE:

Are you aware of9

any instances in which Judge Newman has offered

10

an opinion with a disposition contrary to what11

was voted on by judges?

12
13

THE COURT:I am going to invoke my

Fifth Amendment.

14

CHIEF JUDGE MOORE:

Are you aware of15

any instances in which Judge Newman has changed

16

her mind about the appropriate disposition of a17case that you have been working on?

18
19

THE WITNESS:

I am going to invoke my

Fifth Amendment.

20

CHIEF JUDGE MOORE:

21

seven current cases assigned to her.

22

to walk through each one and ask you if you're

23

working on that case.

24

Judge Newman has
I am going

One of the cases is.

Are you currently working on that case?

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THE WITNESS:

2
3

4/12/2023

Fifth Amendment.
:

Say the whole sentence,

please.

4

THE WITNESS:

On advice of counsel, I

5

invoke my Fifth Amendment right against

6

self-incrimination.

7

CHIEF JUDGE MOORE:

8

case

9

working on that case?

10

THE WITNESS:

Judge Newman has a.

Are you

On advice of counsel, I'm

11

invoking my Fifth Amendment right against

12

self-incrimination.

13

CHIEF JUDGE MOORE:, a second case --15
16

not the same one -- are you working on that one?
THE WITNESS:

On advice of counsel, I

17

am invoking my Fifth Amendment right against18

self-incrimination.

19

CHIEF JUDGE MOORE:, are you working on that case?

21

THE WITNESS:

On advice of counsel, I

22

am invoking my Fifth Amendment right against

23

self-incrimination.

24
25

CHIEF JUDGE MOORE:

Counsel, could you

explain why you're advising your client to

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refuse to answer the simplest of questions about2

her job?

3:

4communications with my client is privileged.

5

That's privileged.

BY CHIEF JUDGE MOORE:My

Do you6

understand,7

proceeding that is involving our investigation

8

into issues related to Judge Newman, and it

9

isn't an investigation into anything related to

10

you?

11

THE WITNESS:

that this is a

I'm invoking my right12

against self-incrimination under the Fifth

13

Amendment.

14

CHIEF JUDGE MOORE:

Do you understand15

that refusing to cooperate with this proceeding

16

could result in a misconduct charge because

17

you're obligated as a judicial employee to18participate?

19
20

:

Objection.

She isparticipating.

21

You can answer.

22

THE WITNESS:

23

CHIEF JUDGE MOORE:Yes.
Do you understand24

that the rules to this proceeding suggest that25

any employee who fails to participate could be

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terminated for misconduct?

2
3

4/12/2023:

Objection.

Argumentative and threatening.

4

You can answer.

5

THE WITNESS:

6

CHIEF JUDGE MOORE:No.
Is it your intent

7

to answer every question that I ask you by

8

invoking the Fifth Amendment?

9

THE WITNESS:

10

CHIEF JUDGE MOORE:

11

No.
Okay, then I'll

continue.

12, are you13

working on that case with Judge Newman's

14chambers?

15

THE WITNESS:

On advice of counsel, I'm

16

invoking my right under the Fifth Amendment to17

avoid self-incrimination.

18

CHIEF JUDGE MOORE:.

20

Are you working on that?

THE WITNESS:

On advice of counsel, I

21

am invoking my Fifth Amendment right to avoid

22

self-incrimination.

23

CHIEF JUDGE MOORE:

, how

24

could you incriminate yourself by simply

25

acknowledging whether you are working on any

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certain cases?
THE WITNESS:

On advice of counsel, I

3

am going to invoke my Fifth Amendment right4

against self-incrimination.

5

CHIEF JUDGE MOORE:.

7
8

Are you working

on that case?
THE WITNESS:

I am invoking my right9

against self-incrimination under the Fifth

10

Amendment.

11

CHIEF JUDGE MOORE:
.

13
14

Are you working onthat case?
THE WITNESS:

I am invoking my right15

against self-incrimination under the Fifth

16

Amendment.

17

CHIEF JUDGE MOORE:.

19

Are you working on that case?

THE WITNESS:

On advice of counsel, I

20

am invoking my Fifth Amendment privilege against

21

self-incrimination.

22

CHIEF JUDGE MOORE:

Do you ever send

23

Judge Newman drafts of opinions?

24

THE WITNESS:

25

On advice of counsel, I

am invoking my right against self-incrimination

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under the Fifth Amendment.

2

CHIEF JUDGE MOORE:

On average, how

3many drafts of an opinion does Judge Newman

4

receive before the opinion gets circulated to5

the panel?

6

THE WITNESS:

On advice of counsel, I

7

am invoking my Fifth Amendment right against

8

self-incrimination.

9

CHIEF JUDGE MOORE:

How could you

10possibly incriminate yourself by revealing how

11

many drafts of opinions are created?

12
13
14

:
Argumentative.

Objection.

You can answer.

THE WITNESS:

On advice of counsel, I'm

15

invoking my right against self-incrimination

16

under the Fifth Amendment.

17

CHIEF JUDGE MOORE:

She didn't advise18

you to say that it was the Fifth Amendment and19

that you shouldn't answer.

20

you could answer.

21
22
23

:

She actually said

She can answer however

she wants.
CHIEF JUDGE MOORE:

But she started by24

saying that, on advice of counsel, she was doing

25

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1

advice.

2

a Fifth Amendment privilege that you would

3

incriminate yourself if you answered the4question?

So is it your decision, then, that it's

5
6:

Objection.

Argumentative.

7

THE WITNESS:

8

CHIEF JUDGE MOORE:

Yes.
Does Judge Newman

9have any physical health issues that you're

10

aware of?

11

THE WITNESS:

On advice of counsel, I

12

am invoking my right under the Fifth Amendment

13

for self-incrimination.

14

CHIEF JUDGE MOORE:

How could you

15

incriminate yourself under the Fifth Amendment

16

by telling us whether the Judge has any health17

issues?

18

THE WITNESS:

On advice of counsel, I

19

am invoking my Fifth Amendment right against

20

self-incrimination.

21

JUDGE PROST:

Can I interrupt and ask,

22

I think you had said earlier that there might be

23

a line of questioning in which you would not24

invoke the Fifth Amendment with respect to your25

duties, or did I misunderstand?

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2

THE WITNESS:

4/12/2023

You did not

misunderstand.

3

JUDGE PROST:

So there are certain

4

things that you would be prepared to discuss in

5

response to questions, so could you give us some6

indication about where that line is drawn to7save us all a lot of time?

8

THE WITNESS:

9

I can't answer that.

10
11

CHIEF JUDGE MOORE::

And can I get your

card?

14
15

Why don't we take afive-minute break.

12
13

Until you ask a question,

CHIEF JUDGE MOORE:

I don't have a

card.

16

:

17

Can I get name?

CHIEF JUDGE MOORE:

Chief Judge Moore.

18

:

19

(A brief recess was taken.)

20

CHIEF JUDGE MOORE:

21

Okay.

Can we go back on

the record?

22

:

23

just want to know who you are at the end of the24table.

25

doesn't know who you are.

Before we continue, I

That's the one person that my client

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4/12/2023:, general

counsel.

3:

4

JUDGE PROST:

Okay.

Let me just, in order to5

expedite this for all of us, I guess I am going6

to probe further, and you'll say what you say,7

but I guess we are in need -- or I feel I'm in

8need of some guidance in terms of getting you to

9respond to questions we have.

10

So I guess are there -- I would like to

11

ask if there are any conditions, preconditions,

12that would provide you comfort or a basis for13

answering -- we've already had a number of

14questions, you know, the type of questions

15

related to your job responsibilities and your

16

work.

17

provide that would permit you to respond?

18
19
20

Are there any conditions that we could

THE WITNESS:
question.

I don't understand theCan you rephrase that?

JUDGE PROST:

I guess I don't know how

21

to restate it other than conditions,22

preconditions.

23

head, this isn't apt necessarily, but just24

immunity, I mean, is that the kind of thing that25

you are -- would satisfy you?

I mean, just off the top of myThat's just

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really off the top of my head.

2

THE WITNESS:

No, no.

3

JUDGE PROST:

So there are no4

conditions that you can think of, such as

5

immunity, that would allow you to answer the

6questions?

7
8

THE WITNESS:
asked, no.

910

For the questions already

JUDGE PROST:

The type -- yeah, the --

okay.

11

And then I guess -- and this follows up

12

to my question earlier about can you give us

13some guidance in order to expedite this in terms

14of you -- I think you noted that there might be15questions you would be willing to answer.

16

THE WITNESS:

Yes.

17

JUDGE PROST:

If you could give us any

18

guidance, would that be -- for example, we think19

we have already asked questions related to your20

job duties and responsibilities.

21questions in that realm that you'd be willing to

22

answer or is that category off the table?

23
24
25

Are there

THE WITNESS:

That category is off the

JUDGE PROST:

I'm trying to thinktable.

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generally what I --2:

Can you tell us what3

categories are on the table?

4

THE WITNESS:5

you questions to ask.

6

:

7
8

I am not going to give

We're asking for topics

of questions.
THE WITNESS:

I understand.

9give you topics either.

10

want to know.

11

information what this is about.

12

anticipate what you might ask.

13

JUDGE PROST:

I can't

I don't know what you

I've been given absolutely no
So I can't

And are you willing to

14

provide a further basis or information as to15

your invocation of the privilege just so that16

maybe there's some way to make you more

17

comfortable -- yes, ma'am?

18:

And objection to that,

19

just because anything related to what we said is20

privileged and confidential.

21

relating to her advice of counsel, I would tell22

her not to answer that question.

23

JUDGE TARANTO:

So anything

If we are in the24

position of having to decide whether you're

25

violating a duty of cooperation, we would want

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to know whatever you could tell us about the2basis for invoking a privilege against3

self-incrimination.

4tell us to --5

Is there anything you can

THE WITNESS:

Not at this time, do I

6feel comfortable divulging what we've discussed

7

during --8

JUDGE TARANTO:

I didn't ask you about

9

what you discussed.

10

might there be to help us think about the11question of duty of cooperation.

12

THE WITNESS:

I asked about what basis

On advice of counsel, I

13

am not going to answer the question under the14

Fifth Amendment right against self-

15

incrimination.

16

JUDGE TARANTO:

And does the category

17

exclusion that you mentioned in reference to18

work in chambers also apply more generally to19

your dealings with Judge Newman?

20
21
22

:
question.

Objection.

Confusing

I didn't understand.

JUDGE TARANTO:

You answered the23question from Judge Prost that the category of

24

your work in chambers was -- I think your25

language was "off the table."

Does the same

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apply to a category of questions about your2

dealings with Judge Newman?

3

A.

Yes.

4

Q.

Okay.

5

:

6

I'm asking the attorney -- when the Fifth

7

Amendment can be invoked?

8

Can you explain to us --:The Fifth Amendment can

9

be invoked in a civil case by a nonparty.

10:

I'm not asking what

11

proceeding types it can be invoked in, but the12basis on which it can be invoked.

13

:

14

the nonparty has a risk of self-incrimination.

15:

It can be invoked when

A risk of self-

16

incrimination in a criminal proceeding17

or evidence used against them.

18
19
20

Is that correct?

:

Evidence that can be:

And can you try toused against them.

21

explain, on whatever basis you can, what22

reasonable basis would come up here?

23:

I cannot at this time.

24:

Because it's difficult

25

for us to understand why some of the questions

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about -- any of the questions being answered2

have anything to do with --

3

:

4

respond to that would relate to my attorney-5

client privilege, of advice that I have given to6

my client.

7

Anything I would

CHIEF JUDGE MOORE:, before8

today, were you aware of a potential judicial

9disability proceeding involving Judge Newman?

10

THE WITNESS:

11

CHIEF JUDGE MOORE:

12
13

Yes.
How did you becomeaware of it?
THE WITNESS:

On advice of counsel, I

14

am going to invoke my Fifth Amendment right15

against self-incrimination.

16:

Why did you answer the17

first question and not this one?

18

THE WITNESS:

On advice of counsel, I

19

am going to invoke my Fifth Amendment right20

against self-incrimination.

21

CHIEF JUDGE MOORE:

22
23

Have you read any

documents given to Judge Newman in this case?
THE WITNESS:

On advice of counsel, I

24

am going to invoke the Fifth Amendment right25

against self-incrimination.

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CHIEF JUDGE MOORE:

4/12/2023
Do you understand2

that this judicial disability proceeding is3

required to be confidential?

4

THE WITNESS:

5

CHIEF JUDGE MOORE:Yes.
Do you understand6

that if you were to share information about it

7

with others, that that would be a breach of the8rules for this proceeding?

9

THE WITNESS:

10

CHIEF JUDGE MOORE:

Yes.
If I tell you right11

now that we will grant you immunity and not

12prosecute you, not find it to constitute an act

13of misconduct, whatever you tell us you have

14

shared or have not shared, would you be willing15

to answer questions then?

16

THE WITNESS:

17

CHIEF JUDGE MOORE:

18

THE WITNESS:

No.
Why?

On advice of counsel, I

19

am going to invoke my Fifth Amendment right20

against self-incrimination.

21

CHIEF JUDGE MOORE:

There is no law

22that prevents you from sharing this information.

23

It is just rules of our Court that says you

24

can't share confidential information.

25

we're willing to grant you immunity, guarantee

So if

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that you will not be found guilty of misconduct

2

for any acts of sharing that you may have3

participated in, why can't you answer these4questions?

5:

Objection.

That goes6

to attorney-client privilege, but you can answer

7

the -- it goes to privilege, but you can answer.

8

THE WITNESS:

On advice of counsel, I

9am going to invoke my Fifth Amendment right10

against self-incrimination.

11

CHIEF JUDGE MOORE:

Have you spoken to12others about this proceeding?

13

THE WITNESS:

On advice of counsel, I

14

am going to invoke my Fifth Amendment right15

against self-incrimination.

16

:

17

basis for your right against invoking the18

privilege?

19
20

THE WITNESS:

Can you explain the

By advice of counsel, I

am going to invoke my Fifth Amendment --21:

Or can counsel explain

23:

Not at this time, no.

24:

So there is no stated22

25

the reason?

basis for invoking the privilege?

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1:

2

There is a basis, but the basis is what I've

3

discussed with my client, so it's privileged and4

confidential, and I can't discuss it with you.

5

There is a basis.

CHIEF JUDGE MOORE:

But, Counsel, you6

are giving her advice not to answer questions in

7

an investigation about a judge.

8

anything to do with her.

It doesn't have9

So can you explain to us why you're

10

advising her not to answer these questions?

11

:

12

JUDGE PROST:

Not at this time.

When you say "not at this13time," does that suggest that if you had more

14time, if you need more time, that you don't want15

to do it in this setting -- in other words, you

16

would provide it to us in writing at some other17

time -- when you say not at this time, I just18

want clarification, not at this --

19

:

20

not given what -- she had exactly one day to21

prepare for this interview with you guys, and,22

therefore, she hasn't had time to prepare her

23answers, and right now she needs to have the24time to -- to have her interview in a timely

25

manner, which she was not allowed to do.

Not in this setting,

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CHIEF JUDGE MOORE:

Oh, so, please,2

help me understand.

3

would you be prepared to come back and answer

4

the questions at that time, because if you just5need time, we are certainly willing to give you

6

time.

So if we gave you a week,

7
8
9
10

:

13
14
15
16

She would still

not answer the questions.
CHIEF JUDGE MOORE:

But your statedreason was that she didn't have time to prepare.

11
12

Nope.

:

Right, which she didn't

have time to prepare.
CHIEF JUDGE MOORE:

But we are happy togive you that time.
THE WITNESS:

But even with that time,

she should still invoke the privilege.

17:

On what basis?

18:

Again, I can't tell you

19

the basis because it's attorney-client

20

privilege.

21

CHIEF JUDGE MOORE:

Do you understand22

that if you talk about this proceeding with

23

others going forward, it would be an act of

24

misconduct?

25

THE WITNESS:No.

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CHIEF JUDGE MOORE:

You don't

2

understand that this proceeding is required to3

be kept confidential?

4

THE WITNESS:

5

CHIEF JUDGE MOORE:

6

that it's required to be confidential?

Yes.
You do understand7

THE WITNESS:

8

CHIEF JUDGE MOORE:

9

understand that the requirement it be10

confidential bars you from discussing it with

11

other people?

Yes.

12

THE WITNESS:

13

CHIEF JUDGE MOORE:

And do you

Yes.
So you understand14

that you can't discuss this proceeding with15

other people.

16

THE WITNESS:

17

CHIEF JUDGE MOORE:Yes.
Do you understand18

that if you do discuss it with other people,

19

that would be an act of misconduct?

20:

Do you understand that

21

that would be viewed by the committee as an act

22of misconduct?

23

THE WITNESS:

24

or are you asking me a question?

25

Are you telling me that

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1

that it would be an act of misconduct to violate2

the confidentiality?

3

THE WITNESS:

I don't understand that.

4

I'm asking you -- if you're telling me that, I

5will take -- I understand your words.

6

knowledge of whether that would be considered an

7

act of misconduct or not.

8

CHIEF JUDGE MOORE:

I have no

The rules regarding

9

this proceeding require that every judicial

10

employee maintain all aspects of it in

11

confidentiality.

12

Did you know that?

THE WITNESS:

I know that the statute13

requires that it is a confidential proceeding.

14

That is all that I know.

15
16

CHIEF JUDGE MOORE:

Are you familiar

with the rules regarding this proceeding?

17

THE WITNESS:

18

CHIEF JUDGE MOORE:No.
Counsel, if you are19

going to represent your client, I would suggest

20

that you get a copy of these rules, because,21, anyone that you share even the fact

22of this proceeding with is a breach of the23

rules.

24
25

So going forward, it would beconsidered an act of misconduct if you speak

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with people, any people, about this proceeding.

2

Do you now understand what I'm telling you?

3
4

THE WITNESS:
yes.

5
6

I understand your words,

CHIEF JUDGE MOORE:Will you agree notto speak to anyone about these proceedings?

7

THE WITNESS:

On advice of counsel, I

8

am going to invoke my Fifth Amendment right to9avoid self-incrimination.

10
11

CHIEF JUDGE MOORE:
are not --12
13

Does that mean you

THE WITNESS:

Can we take a break,please?

14

CHIEF JUDGE MOORE:

15(A brief recess was taken.)

16

:

17
18
19

Sure.

If you could ask yourlast question.
CHIEF JUDGE MOORE:Will you agree notto speak to anyone about these proceedings?

20

THE WITNESS:

21

JUDGE TARANTO:Yes.
I want to ask one -- at22

least one followup question on this categories

23of subject matter, and I think you've identified

24

two that you are -- that you view as off the25table for present purposes.

One had been work

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in chambers.

2

which you gave the same answer, off the table,

3

about dealings with Judge Newman.

4

I think I asked you a question, to

I'm going to ask the same question

5

about your perceptions of Judge Newman and her

6ability to carry out her job.

7

THE WITNESS:

On advice of counsel, I

8

am going to invoke the Fifth Amendment against

9

self-incrimination.

10
11

JUDGE TARANTO:

For that category as

well?

12

THE WITNESS:

13

CHIEF JUDGE MOORE:

Yes.
Just to make sure

14

that we have a clear record for future purposes,

15

when you agreed that you will not speak to

16anyone about these proceedings, that includes

17

people in chambers, people outside of the Court.

18

Do you understand that?

19

THE WITNESS:

20

CHIEF JUDGE MOORE:

Yes.
That includes the21

fact of a disability proceeding as well as this22

interview.

Do you agree with that?

23

THE WITNESS:

24

CHIEF JUDGE MOORE:

25

Yes.
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interview, correct?

2

THE WITNESS:

3

CHIEF JUDGE MOORE:Yes.
Has Judge Newman

4

instructed you in any way about how to testify

5

today?

6

THE WITNESS:

On advice of counsel, I

7would like to invoke my Fifth Amendment right8

against self-incrimination.

9

CHIEF JUDGE MOORE:

Has Judge Newman

10

asked you or encouraged you to talk about these11

proceedings with other people?

12

THE WITNESS:

On advice of counsel, I

13

am going to invoke my Fifth Amendment right14

against self-incrimination.

15

CHIEF JUDGE MOORE:

Do you understand16

that under the law, when you invoke a Fifth

17

Amendment right to invoke self-incrimination,

18

that that allows a body to draw adverse

19

inferences against you with regard to every

20

question that you invoke the privilege?

21

THE WITNESS:

22

CHIEF JUDGE MOORE:

23

stolen money from the Court?

24
25

Yes.

:
Argumentative.

Have you everObjection.

You can answer.

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THE WITNESS:

2

CHIEF JUDGE MOORE:No.
Do you ever perform

3

any legal work related to any case here at the4

Court?

5
6

THE WITNESS:

I don't understand yourquestion.

7

CHIEF JUDGE MOORE:

8

any case here at the Court?

9

THE WITNESS:

10

CHIEF JUDGE MOORE:

11
12

Do you ever work on

Yes.
Do you work on any

currently pending cases here at the Court?
THE WITNESS:

On advice of counsel, I

13

am going to invoke my Fifth Amendment right14

against self-incrimination.

15

CHIEF JUDGE MOORE:

If you aren't

16

working on any pending cases in front of the17

Court, what are you doing?

18

THE WITNESS:

On advice of counsel, I

19

am going to invoke my Fifth Amendment right20

against self-incrimination.

21

:

22

as a matter with anybody else, outside the23

Court, the judicial proceedings, judicial

24

disability proceedings?

25

THE WITNESS:

Have you ever discussed

On advice of counsel, I

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am going to invoke my Fifth Amendment right2

against self-incrimination.

3

CHIEF JUDGE MOORE:

Have you discussed4

the judicial proceedings in this matter with5

people outside the Court at Judge Newman's

6

direction?

7

THE WITNESS:

On advice of counsel, I

8

am going to invoke my Fifth Amendment right9

against self-incrimination.

10

JUDGE TARANTO:

And just circling back11

for a little clarification for my understanding,12

you initially expressed concern about the short

13

time frame you had to prepare for this, and then14

what I understood that Chief Judge Moore asked,

15

if we gave you additional time that you

16

considered reasonable, if that would change your17

responses you had to the questions that have18

arisen today, and I think your answer was no,19

but I just want to confirm that.

20

THE WITNESS:

21

JUDGE TARANTO:

It would not.
It would not change.

22

So it's nothing that -- no matter how much time23

you had, this would remain the same.

24

THE WITNESS:

25

CHIEF JUDGE MOORE:Yes.
Can you give us

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some indication of why you believe that any of2these questions could cause you to incriminate

3

yourself?

45:Objection.

Calls forprivileged communication.

6

CHIEF JUDGE MOORE:

7

for her belief, not anything about any

8communication.

9

THE WITNESS:No.

I'm asking her

On advice of counsel, I

10

am going to invoke my Fifth Amendment right11

against self-incrimination.

12

CHIEF JUDGE MOORE:

13

names of your co-clerks in chambers?

14

THE WITNESS:

16

CHIEF JUDGE MOORE:Can you give us the

And how long have17

you worked with each of them?

18

THE WITNESS:

19

two and a half years, roughly.

20

six months.

21

months.

22

is, I believe,isis three, four

CHIEF JUDGE MOORE:Can you remember an

23

instance where I came down to chambers and spoke24

to all of you?

25

THE WITNESS:Yes.

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CHIEF JUDGE MOORE:

4/12/2023
Do you remember

2

that that instance involved Judge Newman

3

disclosing confidential or sensitive4

information

5?

THE WITNESS:

On advice of counsel, I

6

am going to invoke my Fifth Amendment right7

against self-incrimination.

8

CHIEF JUDGE MOORE:

9

disclose confidential or sensitive10

information

11

Did Judge Newman?

THE WITNESS:

On advice of counsel, I

12

am going to invoke my Fifth Amendment right13

against self-incrimination.

14

CHIEF JUDGE MOORE:

After or at that15

meeting, I asked you to agree that you would not

16

discuss that sensitive confidential information

17

further.

Do you remember that?

18

THE WITNESS:

19

CHIEF JUDGE MOORE:

20

THE WITNESS:

21

CHIEF JUDGE MOORE:

22

I do.

Yes.
Have you discussed

it since then?

23

THE WITNESS:

24

CHIEF JUDGE MOORE:25

Did you agree?

with

No.
Do you ever work?

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THE WITNESS:

2

CHIEF JUDGE MOORE:

I do.
Can you tell me

3what his role in chambers is?

4

THE WITNESS:

On advice of counsel, I

5

am going to invoke my Fifth Amendment right6

against self-incrimination.

7
8:

Can you explain a basis

for invoking the privilege?

9:

Again, the privilege is10

invoked because of the communications I had with11

my client, so I'm not willing to discuss it.

12

CHIEF JUDGE MOORE:Will you provide us

13with a basis for believing that these kinds of

14questions could cause you to incriminate

15

yourself?

16

THE WITNESS:

17

CHIEF JUDGE MOORE:

Not at this time.
And, Counsel, do I

18

understand that you will also not provide us

19

with any basis for how any of these questions

20

could incriminate her?

21:

Not at this time.

22:

Is there a time that23

would be appropriate or acceptable to you or24that you could do it?

25:

I'm not sure.

I don't

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know.

2

:

Can you do it in a week?

3

:

No.

:

If you were to do it,

4will you provide a written response?

78:

It depends on who you:

The basis for invoking

order to do what.

9
10

I'm

not sure.

5
6

I don't know.

the privilege to these questions.

11

:

12

everything related to why my client is invoking

13

the privilege is privileged and confidential,

14and I cannot tell you why we're invoking the15

privilege without violating attorney-client

16

privilege.

17

At the moment,

CHIEF JUDGE MOORE:, do you18

understand that we could grant you immunity from19

any sort of misconduct proceeding in this20

context?

21

THE WITNESS:

22

CHIEF JUDGE MOORE:No.
If we did grant you

23

immunity from any sort of misconduct proceeding,24

would you be willing to answer all of the25questions that we've asked today?

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THE WITNESS:

2

CHIEF JUDGE MOORE:No.
Are there any of3

the questions we've asked today that you would

4

be willing to answer?

5

THE WITNESS:

I would continue to6

invoke my Fifth Amendment right for the7questions for which I've already invoked my

8

Fifth Amendment right.

9

JUDGE TARANTO:

If immunity included

10

criminal immunity from the United States

11

Attorney, what would your answer be to that

12question?

13

THE WITNESS:

No.

14

:

15

mean you still won't answer the questions?

16
17

THE WITNESS:

When you say "no," youI will not answer thosequestions.

18:

So my understanding is

19

under no circumstances will you answer

20

questions.

21
22

Is that fair to say?

THE WITNESS:

For those questions that

I've already invoked, I will continue to invoke.

23

:

24

JUDGE TARANTO:

25

Okay, thank you.
And let me just, I

guess, add any state-level criminal immunity,

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1

too, if that also was provided, would you answer

2

the questions?

3
4

THE WITNESS:
question.

5

I don't understand your

Could you rephrase it?

JUDGE TARANTO:

Sure.

6

Self-incrimination is a concern about criminal

7

prosecution.

8

provided you immunity from criminal prosecution

9

and a sovereign of any relevant state or --10

let's add in the District of Columbia -- did the11same, would you still invoke your Fifth

12

Amendment privilege?

13

THE WITNESS:

14

CHIEF JUDGE MOORE:

If the sovereign United States

Yes.
Are there any

15

circumstances that would permit you to answer

16

the questions and not invoke your Fifth

17

Amendment privilege as to the questions already18

asked?

19

THE WITNESS:

20

CHIEF JUDGE MOORE:

I can't speculate.
I'm not asking you

21

to speculate.

22

make this a cooperative proceeding.

23

I'm seeking.

24
25

I'm saying what could we do to

THE WITNESS:

That's all

I am cooperating.

I'm

here.

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2:

4/12/2023
Well, you're notanswering --3

THE WITNESS:

4

questions that I can answer.

5

CHIEF JUDGE MOORE:

I'm answering thoseBut we asked some6very basic questions about your duties in

7chambers or whether you've drafted opinions or8whether you've written a bench memo, and these9

are typically jobs that all law clerks do, and10

you've refused to answer any of those questions.

11

So I'm confused, why?

12:

And I'm just going to

13

say again that this goes to her privileged

14communications with me, and she cannot answer

15

related to anything that we have discussed, but

16

you can answer her question.

17

THE WITNESS:

18

CHIEF JUDGE MOORE:

There was no question.
Actually, it was,

19

why?

20

questions about your job duties in chambers?

21

Why are you refusing to answer any

THE WITNESS:

On advice of counsel, I

22

am going to invoke my Fifth Amendment right23

against self-incrimination.

24
25

JUDGE PROST:

Is there a telework

policy in your chambers?

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THE WITNESS:

4/12/2023

On advice of counsel, I

2

am going to invoke my Fifth Amendment right3

against self-incrimination.

4

CHIEF JUDGE MOORE:

5

How many hours aweek do you work?

6

THE WITNESS:

7

CHIEF JUDGE MOORE:

Forty to 100.
And is that 40 to

8

100 for work you do for judicial matters here at9

the Court?

10

THE WITNESS:

Yes.

11

JUDGE PROST:

And is that work

12

typically performed in person, in chambers, or

13

elsewhere?

14

THE WITNESS:

On advice of counsel, I

15

am going to invoke my Fifth Amendment right16

against self-incrimination.

17

CHIEF JUDGE MOORE:

You've indicated18that you work 40 to 100 hours a week for

19

judicial matters here at the Court.

20

give us any examples of work you've done in the21last week?

22

THE WITNESS:

Can you

On advice of counsel, I

23

am going to invoke my Fifth Amendment right24

under self-incrimination.

25

CHIEF JUDGE MOORE:Can you give us any

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examples of work you've done in the last year?

2

THE WITNESS:

On advice of counsel, I

3

am going to invoke my Fifth Amendment right4

against self-incrimination.

5

CHIEF JUDGE MOORE:6

the 40 to 100 hours a weeks doing?

7

THE WITNESS:

What do you spend

On advice of counsel, I

8

am going to invoke my Fifth Amendment right9

against self-incrimination.

10

JUDGE PROST:

Were you hired as a term11

law clerk or did the position convert after a12certain period of time?

13

THE WITNESS:

It converted.

14

JUDGE PROST:

Do you recall

15

approximately when?

16
17
18
19
20

THE WITNESS:

At about two years,

JUDGE PROST:

And that's two years --roughly.

when did you start your employment here?
THE WITNESS:

Early December of 2019,21

and it converted in December -- November,

22

December of 2021.

23
24
25

CHIEF JUDGE MOORE:

Did you tell anyone

that you were subpoenaed to appear here today?
THE WITNESS:Yes.

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CHIEF JUDGE MOORE:

2

THE WITNESS:

4/12/2023
Who did you tell?

On advice of counsel, I

3

am going to invoke my Fifth Amendment right4

against self-incrimination.

5

CHIEF JUDGE MOORE:

We have an ongoing

6

judicial misconduct and disability proceeding.

7

I am going to instruct you now that you do not8delete any emails in your court account.

9

understand that instruction?

10

THE WITNESS:

11

CHIEF JUDGE MOORE:

Do youYes.
Will you agree to12comply with that instruction?

13

THE WITNESS:

14

CHIEF JUDGE MOORE:

Yes.
, we

15

have no further questions at this time given

16

that you have taken off the table so many topics

17

related to your work here at the Court, and are

18

refusing to answer those questions.

19

We reserve the right to call you

20

again at some point in the future, and if at

21

some future date you can come up with

22

circumstances that you think would change

23

whether you're willing to cooperate or not,24

please let us know.

25

THE WITNESS:Okay.

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2
3
4

CHIEF JUDGE MOORE:

4/12/2023
This concludes theproceedings.
(Whereupon, at 10:15 a.m., thedeposition was concluded.)

5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

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1
2

CERTIFICATE OF REPORTER

3
4
5

I, Susanne Bergling, do hereby certify

6

that the foregoing proceedings were recorded by7

me via stenotype and reduced to typewriting

8

under my supervision; that I am neither counsel

9

for, related to, nor employed by any of the10parties to the action in which these proceedings

11

were transcribed; and further, that I am not a12

relative or employee of any attorney or counsel

13

employed by the parties hereto, nor financially14

or otherwise interested in the outcome of the15

action.

16
17
18
19

SUSANNE BERGLING, RMR-CRR-CLR

20
21
22
23
24
25

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AFFIDAVIT OF[Affidavit 1]

1. My name is
and I worked as Judge Newman's paralegal from
December 28, 2021 until April 19, 2023. The statements made in this affidavit
come from my own personal observations and experiences to the best of myrecollection.
2. I assisted Judge Newman with the day-to-day administration of her chambers,
including: maintaining and updating her law library; preparing financial
disclosure reports; maintaining chambers information and storage filingsystems (electronic and paper); preparing orders, notices, and opinions for filingin the court's electronic and case management filing system; arranging meetingsand conference agendas; providing assistance for law clerk orientation andtraining; providing chambers staff with assistance on the court's automatedcomputer and software systems; monitoring deadlines, tasks, and determining
need for action by Judge Newman; coordinating all general activities and serving
as a liaison; performing a wide variety of special projects at Judge Newman's
request; calendaring; receiving guests and visitors; scheduling and confirming
appointments; helping prepare bench-books for argument; performing legal
research for speeches and public appearances; tracking the status of draft
opinions from Judge Newman's chambers; tracking draft opinions from otherchambers that were circulated for vote; incorporating Judge Newman's edits;reviewing legal documents assigned by Judge Newman for completeness andaccuracy; preparing draft opinions; and answering phones.
3. I provided the Special Committee investigating this matter a copy of reports that
I routinely provided Judge Newman to monitor the status of opinions assigned
to Judge Newman and the status of cases that Judge Newman was on but not
the authoring judge. Those reports are labeled "Cases Assigned to Judge
Newman Draft Tracker"; "Workload and Case Assignments" list; and "Cases
Assigned to Other Panel Members." To the best of my knowledge, those reports
were an accurate reflection of the status of cases in Judge Newman's chambers
as of the time I provided the reports.
4. I was physically present in chambers almost every day. I typically worked from
7:30am to 4:30pm Monday through Friday. Judge Newman worked primarily
remotely from her home, coming to the court approximately once or twice amonth for the most part of my time at the court.
5. As part of my responsibilities, I had a one-on-one call with Judge Newman every
workday at 9:30am to discuss these reports and the day-to-day administrationof chambers, including Judge Newman's daily calendar. I also participated on
1Zoom video calls with Judge Newman and her law clerks held every Monday at
12:00pm during which we discussed the status of chambers work.
6. About nine months ago, I witnessed Judge Newman needing to be assisted backto chambers from oral argument. I was told in Judge Newman's presence that
she had fainted and could not make it back to chambers without help. I
instructed Judge Newman to sit down by my desk in a chair to rest because I
didn't feel comfortable having Judge Newman walking all the way acrosschambers to her desk. I wanted to monitor her condition for a period of
approximately 10 to 15 minutes to ensure that she was safe to go home because
she lived alone and would have no one at home to monitor her.
7. I have observed Judge Newman indicate on occasion that she needs to sit downbecause she lacked the energy to be able stand, which I attributed to forgetting
to eat breakfast or staying up late working. I am also aware that chairs wereplaced along the length of the 8th floor hallway every 10 feet from our chambers
to the judges' elevators because Judge Newman needed to take frequent breaks
to walk the length of the hallway. At the end of the workday, Judge Newman
would often have to sit to rest in the elevator bay outside the 3th floor prior to
taking the elevator to the basement. I assisted Judge Newman by walking
beside her when she departed to the basement to a staff member's car because I
was afraid of her falling during the walk from the elevator to the car.
8. Judge Newman informed me that she liked to work on her couch at home andwould fall asleep on seemingly a daily basis. Frequently on our 9:30am phone
calls, when I would check in with Judge Newman about the previous workday,
Judge Newman would say that she had been working on an opinion but that she
was so comfortable on her couch that she had fallen asleep. Judge Newman
routinely rested between the hours of 11:00am and 2:00pm, and I therefore tried
to avoid calling Judge Newman until the late afternoon to avoid disturbing her
and to allow Judge Newman to get her rest. I would only call Judge Newman if
there was a filing notice that she was the action judge on because instructions
would need to be sent to court services during court business hours.
9. I am aware that Judge Newman has had cardiac problems and has had at least
one cardiac-related procedure. It is my understanding that Judge Newman
regularly sees a cardiologist and audiologist in addition to seeing her primarycare provider.
10. I have on multiple occasion seen Judge Newman have trouble recalling eventsand information. In my experience with Judge Newman, her memory loss and2confusion has increased significantly since I started at the court. On various
occasions, I have also entered chambers and observed Judge Newman staring
off into space with a blank look in her eyes. I would try and get Judge Newman
engaged on something present because she seemed lost and confused.
11.On November 16, 2022, Judge Newman, the Circuit Librarian,and I met to discuss a proposed display concerning Judge Newman's patent. On
December 16, 2022, I presented to Judge Newman a draft of the narrative forthe display and Judge Newman agreed to do a 3-4-minute audio recording. On
January 4, 2023, I met with Judge Newman to select photos from her private
personal collection for the display. On January 16, 2023, I again showed Judge
Newman the pictures that she selected. However, on February 20, 2023, when
Judge Newman was again shown the pictures, Judge Newman indicated that
she had never seen them before and asked where I had gotten them. She seemed
to have entirely forgotten about our prior recent meetings. I informed Judge
Newman that the picture was taken in Cooperstown, NY in 1974 and was sent
to her by the General Counsel of General Electronic Company and that I had
provided this information to her on multiple previous occasions.

I, 2023, Judge Newman provided final edits of her dissent infor upload to the Slip Op Application. The majority
and dissent were released on Monday March I, 2023. At chambers postconference staff meeting on the very next day, Tuesday March I, 2023, when

12. On Friday March

discussing(- PN, _), in which the, Judge
Newman stated that the case reminded her of another matter, but she could not" on a notepad because I was sorecall the case at all. I wrote 'concerned that- had been issued the day earlier and she couldn't remember.
I spoke with
andabout this after Judge Newman
concurred that Judge Newman did not recall the opinion
left.
that was issued a day earlier.
thought it was- but could not confirm. I
requested - and - to start having more intensive follow-up with Judge
Newman on their cases. We discussed strategies to use during our weekly Zoom
meetings. I informed them that it would be best if they picked up their oldest
case presented it and developed a plan with Judge Newman to release within 2
weeks or less.

11111

13. On our daily calls, I often needed to repeat information about the status of casesand opinions that were waiting for vote. In response to me bringing up casesthat were awaiting her vote, Judge Newman would often tell me that she would
try and review the draft that day, but I would not get any subsequent response3

for weeks. Despite daily reminders, I was rarely successful in getting Judge
Newman to get through our set agenda for the week. There were occasions when
Judge Newman would tell me that she sent a vote out when the panel was still
waiting for her vote. There were also occasions when Judge Newman had totally
forgotten that the case was circulated to the panel for vote.
14.Over the last year, Judge Newman would make statements to me that her phoneand computer were being "bugged" and "hacked" and that bloggers and the
media were out to get her and bring her down. These would seem to occur atleast once a week and most frequently on our Monday calls. I would follow up
regularly with ITO, but ITO would inform me that there were no concerns or IT
issues. I was very confused because no one else in chambers was having regular
IT issues but Judge Newman seemed to have trouble on a weekly basis. I thoughtthat Judge Newman was not able to keep up with the workload and that thestatements about computer issues could have been a cover for her inability tokeep up with her cases. She seemed constantly paranoid about this despite no
actual basis for her to be concerned.
15.In my experience at the court, submitted cases are routinely circulated to otherpanel members for vote on the date of submission. I do not recall any case inwhich Judge Newman was ready to circulate a draft opinion to the other panel
members by the submission date while I was working in Judge Newman'schambers. Despite me prompting her, I would say it took her significantly longer
than other chambers to circulate opinions on submitted cases. Judge Newman
often declined to assign submitted cases to a law clerk to work on, saying she
would rather first dig into the briefs. She would not follow up or respond to myrequests to have a clerk assist with the preparation of a draft.
16.Frequently, I would encourage Judge Newman to assign pre-submitted cases toother panel members because of the backlog of Judge Newman's docket. Judge
Newman almost always refused to assign pre-submitted cases to other panel
members because she was concerned that law clerks would not have any work
to do or would run out of work.

■,

17.On May
2022, I provided Judge Newman a completed first draft for review
in the submitted case,My draft totaled 11 pages. Thisappeared to be a routine case that would merely require
Having not received any
response, I followed up with a short memo in May 2022. Judge Newman did notprovide feedback or edits on my first draft until January
2023. Eight months■,

4

elapsed before I got any indication that Judge Newman had even reviewed thedraft.
18.I was asked on another occasion to assist Judge Newman in drafting a submitted. I was instructed by Judge Newman on multiple
op1mon inoccasions during our Monday weekly Zoom chambers meetings not to send thedraft for her review because she was working on other matters and that she
would be caught up in a few days. The first draft was completed and saved on
February 2023. That case was submitted on February
2023. When I leftchambers, I was still waiting her approval to send the draft.

■,I,

19.In my experience, similar requests from law clerks were repeatedly denied byJudge Newman during these meetings with months going by without any follow
up by Judge Newman.
20. When Judge Newman would assign herself to author the opinion in an argued
case, she would typically have a law clerk work on the first draft of the opinion
for her review. In my experience, the law clerks turned in timely work product.
For instance, a law clerk provided Judge Newman with a first draft opinion in
on January2023 (within 11 days of the date ofsubmission). However, as of April 2023, Judge Newman had not yet approvedor asked me to incorporate any changes to the draft. Her standard practice wasto make handwritten changes to drafts and then fax them to me to incorporate.
That did not occur in that case. In, a law clerk provided Judge
Newman a first draft on October
2022 (10 days after submission). Judge
Newman did not contact me to start making her edits to the draft until March
2023. The amount of time between receiving a draft from a law clerk andJudge Newman turning to the drafts to make edits in- was typical of thedelay in reviewing first draft opinions.

I,

I,

■,

■,

21.It was common for Judge Newman to go through multiple rounds of providing
me with handwritten, faxed edits to drafts to incorporate before the drafts werereturned to the law clerks. For instance, as of April 2023, the Cases Assigned
to Judge Newman report indicated "Draft # 15" for-. Law clerks
then would often need to make substantial corrections to clean up and clarify
these revisions because of the deterioration of the quality of the now-revised
opm1on.

I,

22.I made Judge Newman aware on multiple occasions of the court's Clerical
Procedure#3.5, which provides "[v]oting should be given priority in eachchambers over other matters as a proven means of facilitating the work of the5court" and therefore "Judges shall vote on circulating precedential andnonprecedential opinions within five working days of receipt, or explain to theauthoring judge why more time is needed." However, in my experience, Judge
Newman never followed this practice and stated to me that the rule did not apply
to her in light of statements made to her by former Chief Judge Markey who atsome time in the past told her she could take up to 30 days to vote.
23.Judge Newman would come to the National Courts Building primarily only onoral argument days and special events. Judge Newman was driven to and fromthe court by her - law clerk. It is my understanding that this law clerk
would also drive Judge Newman to medical appointments and for special eventsand do her grocery shopping. The clerk would also help bring case materials
back to Judge Newman's home where Judge Newman primarily worked. WhenI was present at Judge Newman's home, I saw folders and papers spread aroundand not organized. I offered to help organize her papers, but she declined.
Particularly over the last few months, Judge Newman was having trouble
keeping track of what case materials were at her home office and what casematerials were in chambers. This was becoming very concerning to me because,
for the most part, Judge Newman had been able to keep track of what casematerials she had at her home office and now was unable to do so. She used tohave everything prepared for oral argument. However, for the last threemonths, she would show up on argument days without case materials she would
typically bring with her, and I would have to quickly try and get the samematerials from the law clerks to ensure she was prepared for argument. Thiswas very concerning that she would not be prepared for argument.
24.In early March 2023, Judge Newman disclosed to members of chambers that
. I confronted Judge
toNewman because disclosing
her staff seemed entirely inappropriate and unnecessary, but she did not seemto understand the seriousness of the matter. To try and protect Judge Newman
and make sure that such inappropriate disclosures were not repeated, I found it
necessary to inform the Chief Judge about Judge Newman's behavior. The Chief
visited chambers the next day to speak with everyone, including Judge Newman,
about the importance of maintaining such information confidential.
25. The nature of my job changed after the Chief Judge spoke to chambers.
26. Judge Newman and some of her law clerks stopped sharing information withme that was necessary to keep track of the status of cases in chambers and I was
not even allowed to perform tasks I was previously handling. Judge Newman
6did not provide me with any update or information about any changes tochambers' protocols or operating procedures.
27. Judge Newman stopped discussing work matters with me. Her tone on our daily
9:30am phone calls was now often angry and cold. Her refusal to discuss the
day-to-day operations of chambers prevented me from performing my essential
job duties. The only thing that she would discuss with me was when the Human
Resources Department was going to post an advertisement for my job. Judge
Newman refused or declined to take any action or respond to basic questions orrequests related to the status of cases currently pending on her docket. She also
refused to respond to basic questions about her calendar and daily schedule.
This created a very hostile work environment for me, but I did not share thiswith anyone in chambers to protect Judge Newman.
28.Judge Newman even sent me a message along the lines of "Great, I'll be in thosedays," in response to me informing her that I would be out of the office, which I
understood as suggesting she did not want to be in the office when I would also
be there. I felt that she did not want me to be in chambers at all and that she
wanted me gone. I was pained to get the message. However, I was also confused
because she seemed to be obsessed with me being in chambers daily as her firstquestion was always whether I was in chambers or at home.
29.Judge Newman wrongfully accused me of refusing to do work for her. Judge
Newman requested that I make her edits to the most current version of a draft
opinion she was working on with a law clerk. I informed Judge Newman that I
was never sent the most current version of the draft to which she replied: "Areyou refusing to do work?" She then said: "What is your problem, I've never had
a problem with you doing work for me before." I told her there was no problem.
Judge Newman then said: "What do I have to do, have another judge's paralegal
do my work?" I responded, "No your honor, I do not think it would be appropriate
for another judge's paralegal to do your work." To be clear, I was not refusing to
do work. I simply couldn't do what she was asking because I had been cut off
from communications.
30. Judge Newman withheld approval for leave and my timesheet. On March 30,
2023, Judge Newman verbally approved my request for annual leave for April
6 7, 2023 so that I could visit my family for Easter. After returning from leave,
I received an email from Human Resources requesting Judge Newman forward
confirmation of the approval of my leave request so that Human Resources could
then process my submitted timesheet. I called Judge Newman and informed herthat my approval for leave needed to be confirmed immediately or I would not7

receive my paycheck for that pay period. Judge Newman requested that I
forward the email from Human Resources and stated that she would send
confirmation of the annual leave approval right away. As requested, I forwarded
the email from Human Resources to Judge Newman. Judge Newman, however,
never acknowledged receipt of the email and declined to send confirmation of myannual leave to Human Resources as she had agreed to do. Instead, I had to send
HR a separate email in which Judge Newman had stated to other judges that I
would be away on vacation for those days to receive my paycheck.
31. On April 13, 2023, I brought my concerns that Judge Newman was being
abusive and retaliating against me to the Director of Workplace Relations andfiled a request for assisted resolution. I also informed the Chief Judge that I
could no longer work in this environment because Judge Newman had become
so hostile toward me. I asked the Chief Judge for an alternative work
arrangement that would allow me to work outside chambers but allow Judge
Newman to continue to contact me as usual so I could perform my work for her.
On April 14, 2023, the Chief Judge agreed to inform Judge Newman that while
I would continue to perform my duties as Judge Newman's paralegal, myworkstation would be moved outside of chambers. That same day, my phone andcomputer were moved to the clerk's office.
32.Although my workstation was no longer located in Judge Newman's chambers,
I continued to handle all my usual day-to-day responsibilities, including my
9:30am daily call with Judge Newman; watering the plants; going to chambers
to check and circulate the mail; checking the fax machine; continuing to answer
calls to chambers and relay messages; circulating opinions and votes; andreaching out to the court's Information Technology Office per usual procedure to
set up calls for chambers at Judge Newman's request or when she had problems
with her IT equipment.
33. On April 18, 2023, I called Judge Newman for our routine 9:30am call. She
made several comments along the lines of "you deserted chambers," "when are
you returning to chambers," "this isn't going to work," "when are you going to be
back," and "you are not doing anything for chambers," and "none of the staff can
get any of their work done because you are not in chambers." This wascompletely untrue given I was continuing to perform my responsibilities and I
had to her satisfaction previously been able to do all my work at times
teleworking in the past. I would describe Judge Newman's behavior on the callas aggressive, angry, combative, and intimidating. The call made me feel very
uncomfortable, anxious, and insecure because I had no idea what Judge

8

Newman was going to do or what her response was going to be, and I felt that if
I responded she would get angrier and more upset.
34. On April 19, 2023, I called Judge Newman for our routine 9:30am call. After I
said good morning, Judge Newman again started to complain about thealternative work arrangement. In an angry and dominant tone such that I knew
I wasn't going to be allowed to speak, she told me that unless I moved back tochambers by 11:00am that she would accept my resignation even though I had
not requested to resign on that day. She then hung up the phone on me without
allowing me to respond. I understood Judge Newman as saying that she wasgoing to terminate me immediately unless I dropped my request for analternative work arrangement under the court's Employment Dispute
Resolution Plan (Plan) while the Chief was investigating my claims.
35. This was not the only recent time I was subjected to inappropriate workplace
conduct in Judge Newman's chambers. I told Judge Newman that her law clerk was repeatedly contacting me off-business hours in the middle of thenight including at 3:00am asking for a wake-up call and 1:00am call asking me
not to a final review of a draft opinion that was out on clerk-to-clerk review.
Judge Newman attributed these inappropriate communications to people having
different schedules and did nothing about it. After Judge Newman's refusal totake any action to stop the late night contacts, I reached out to the Director of
Workplace Relations and the Chief Judge for assistance. I explained to them, as
I did to Judge Newman, that the clerk could contact me by email at any time butthat I needed her to refrain from texting and calling me in the middle of nightfor her personal and work-related requests. Despite my requests to stop, theclerk continued to contact me outside of regular working hours after bringing
the matter to Judge Newman's attention.
36.I understood from the Director of Workplace Relations and the Chief Judge thatmy request for help would be confidential under the Plan. However, I am awarethat after contacting the Director of Workplace Relations, Judge Newman
emailed at least 95 people revealing all the details that I had disclosed inconfidence, including my name as the complainant.
37.I would like to say that l love, revere, and admire Judge Newman personally andprofessionally for all her accomplishments and who she is as a person, whichmakes the last few months so much more difficult. The thing that causes me thegreatest anguish is that Judge Newman has never acknowledged that she has
acted inappropriately towards me and offered an apology. The past few months
have been extremely stressful and have caused severe anxiety and emotional9distress brought on by Judge Newman's recent behavior towards me and refusal
to communicate with me on any level.
I swear and affirm under penalty of perjury that the foregoing is true and correct.
Isl

Sworn to and subscribed before me this J,S-ttA

day ofAy;ri I

District of Columbiameon
Ing stacement

10

AFFIDAVIT OF[Affidavit 2]

and I work in the Information Technology Office (ITO)
1. My name isof the United States Court of Appeals for the Federal Circuit. My current title isActing HelpDesk Supervisor. I have been employed in ITO since 2007. My
responsibilities currently include supervising the work of ITO helpdesk teammembers. The facts in this affidavit come from my own personal observations tothe best of my recollection.
2. On April 17
the ITO helpdesk received a request from Judge Newman's
paralegal,
about assisting Judge Newman. Another member of the
ITO staff,
called Judge Newman at approximately 3:30pm thatafternoon to see how we could assist her. -had the call on speaker.
3. Over the course of that call, I heard Judge Newman say to-that someone at
the court was deleting her emails and I heard Judge Newman threaten that she�oing to get her lawyers to investigate why her email was being "hacked."-offered to assist her to locate any missing files or emails. In our experience,
Judge Newman frequently misplaces her files or emails by moving them to otherfolders and forgetting were she put them or inadvertently deleting them. She
refused-offer to help her locate the missing material indicating that she
believed the court was responsible. I would describe Judge Newman as ranting,rambling, and paranoid.
4. The following day, April 18, 2023, ITO received more phone calls from Judge•
Newman's chambe
tely 3:00pm,_ received a call from Judge
laced the call on speaker so that I could
Newman's
also listen.
man's phones were being forwarded
to Judge Nthat we would
told
investigate the issue and theand I then checked the Cisco CallManager, which indicated that her phones were not being forwarded.
and Judge Newman. They
5. A few minutes later, I answered a call fromsaid that the reason why Judge Newman had been unable to hear incoming calls
was because the volume on her phone had been turned all the way down.
6. At that point, I thought it was best to double check that Judge Newman's phones
were properly working. When I called Judge Newman's line, Judge Newman
picked up the phone. I informed Judge Newman that we were calling to makesm·e her phone was working correctly and that she could hear the calls properly.
was on her line. I informed
I recall Judge Newman then asking why
Judge Newman that the system was always set up to allow her paralegal to1

,Ianswer the phone and reminded her that this was the same with her prior judicial
assistant. At that point, Judge Newman began to discuss her relationship with- She said that- no longer wanted to work for her and that she was nottaking it well. Judge Newman then said that she was going to have-"removed
from the court" or "arrested." Judge Newman seemed to be referring to the phonesituation that day. Judge Newman then said that she was "going to make a big
fuss" and planning to go to the Supreme Court and that you'll hear more about
this because it was going to be on the front page of the Washington Post. I
assumed Judge Newman was discussing the ongoing investigation. Despite our
assuring Judge Newman that the phones were working properly she again
demanded that the court fix its phone system and insisted we "make it work." For
the most part during her rant, we remained silent to let her ai1· her grievances
which she expressed in a frustrated and very aggressive tone. The next morning,
I went to Judge Newman's chambers to check again and confirmed again that
there were no issues with the phones.
7. On April 21, 2023, Judge Newman requested assistance because she was having
trouble entering her PIN for her security key to log into her court-issued laptop.
Judge Newman explained that she did not know why this was happening andclaimed that she "turned it off overnight because it's being hacked, as you know."
She seemed frustrated. I instructed Judge Newman to click "other user," but she
got nervous and asked: "who is the other user?" I tried to explain to Judge
Newman that there was no other user and that this is a standard option as partof the operating system. She non-1·esponsively said that there was a lot of otherstuff going on and that "It's all going to come out in a terrible uproar." Once wewere able to help Judge Newman get the text box to appear so she could enter her
code, she had trouble entering her PIN in the text box. For about 5-10 minutes, I
worked with Judge Newman to try and get the characters to populate but it would
not work for her. I then instructed Judge Newman to restart the computer. Whilethe computer was restarting, Judge Newman said: "What kind of mysterious stuff
is going on?" Eventually, we were able to get her logged in. This process took 21
minutes. When other users have had similar problems, they can usually beresolved in a matter of minutes.
8. Over the last year, I've noticed in my interactions with Judge Newman what
seems to be significant mental deterioration. Judge Newman routinely states that
her computer is being "hacked" even though her concerns seem to be easily
explained by Judge Newman forgetting what she was doing or not realizing thatthe network disconnected her based on inactivity. She seems agitated andparanoid, and we frequently have to calm her down in order to be able to help her
with her problem.
2

9. I would estimate that Judge Newman requests ITO's assistance significantly morethan anyone else at the court. Judge Newman will call 1-2 times a week and now
seems to be calling every day or other day for assistance. Many of these requests
are the result of Judge Newman not being able to remember where she saved afile or email or Judge Newman forgetting the steps to remotely access into thecourt's computer network. These are things that Judge Newman has done foryears, and these processes have not changed. She never used to have a problem
with these routine tasks but now seems to repeatedly forget how to do them. We
have to walk her through the same steps over and over and she does not seem toremember them from day to day. I believe last month alone we had to walk her
through how to login in remotely 5-6 separate times. She has been working
remotely since covid began and logging in remotely the same way throughout that
period.
IO.Judge Newman has also had significant difficulty grasping our instructions on ourrecent calls making it difficult to assist her. For instance, on the morning of April
14, 2023, we worked with Judge Newman on the phone for over an hour to again
walk her through the steps to log-in remotely. Again, this is the same simple
process she has used for years. A significant portion of time was spent helping
Judge Newman just to get to the main desktop screen. Another large portion was
spent getting her to see the pulse secure icon which was right on the top right
portion of her screen. ITO would typically be able to help a user resolve this issue
in less than five minutes, but Judge Newman was simply not comprehending thesimple process for using the application that she used to have no problem handlingon her own.
11. She also calls frequently about being unable to use her fax machine. The problems
often involve user error. She forgets to load paper or simply needs to reboot themachine.

3

12. Having worked with Judge Newman for years, I have noticed significant
deterioration in her memory, confusion, and ability to understand and executesimple tasks over the last year. Though it is difficult to say this, I believe Judge
Newman is simply losing it mentally.
I swear and affirm under penalty of perjury that the foregoing is true and correct.

ANNETTE 8. YOUNONOTARY PUBLIC DISTRICT OF COLUMBIA
MyCommisslon Expires Ncwember 14, 2026

4

[Affidavit 3]

4. Judge Newman seemed to have a particularly difficult time grasping the factthat the Chief Judge had agreed to seek approval of an offset waiver so that­
could receive her retirement annuity and collect an unreduced salary. I informed
Judge Newman of this by phone and by email on April 24, 2023. However, at 7:35pm
on May 1, 2023, Judge Newman sent me an email stating that it would be"inappropriate to ask a retired federal employee, who offers interim assistance out ofloyalty to me, to yield her federal pension in exchange for an uncertain few weeks ordays of work." The next day, May 2, 2023, at 9:58am, I sent an email reminding
Judge Newman that the Chief Judge agreed to seek approval to waive the salary off­
set and, if approved,-"would receive her full pension and salary for hours
worked here at the court." I again reiterated that "I am happy and ready to assist
with (the) waiver request process." At 10:32am, Judge Newman responded by saying"To be clear: Are you saying she would receive no additional pay for working at the
court?" At 10:40am, I sent Judge Newman another email again repeating that­- "would receive her full annuity (pension payment), as well as pay for hours
worked at the court." Despite my repeatedly assurances, Judge Newman continued
to express concern in her response at 11:04am, stating "What would she be paid forher work at the court? What formalities would be applied to her pension status?" I
responded a few minutes later at 11:18am again trying to assure Judge Newman that,
if the waiver were approved,-woulcl be paid at the same grade and step thatshe previously held and that "[t]here would be absolutely no effect on her pension."
Judge Newman sent a response that night at 9:35pm saying ''To be clear: will herannuity payment continue undiminished and automatically, paid by regular deposit• or �.hatever system is now in place for her annuity? Then will she be separately paid
for_the days worked during each pay period, as certified by me?" I emailed Judge
Newman again the next morning at 9:12am to reiterate that "Yes, if approved by the
Di're�tor, her annuity payments will continue uninterrupted'' and she would also
receive separate earnings by direct deposit. A copy of these emails is attached.

.

'5. I also encountered several issues trying to get Judge Newman to finalize avacancy announcement for the permanent position. On April 27, 2023, I sent Judge
Newman a draft vacancy announcement and informed her that I would post theannouncement once she approved. Three days later, April 30, 2023, Judge Newman
sent me an email asking for the vacancy announcement that was used for the
recruitment that resulted in her prior hire of
I emailed Judge Newman
a copy of that prior announcement on May 1, 2023. The following clay, May 2, 2023,
at 1:27pm, Judge Newman sent me an email with a link to a posting from theAdministrative Office's website for a judicial assistant position at the District ofColumbia Circuit Court of Appeals and asked that I use that description for her
position. However, the link she sent to the announcement did not work and theannouncement was no longer available. I emailed Judge Newman back at 2:04pm, tolet her know the link was broken and that I could not access the posting. I also asked
2

C

Judge Newman to confirm that she would like to hire a judicial assistant rather thana paralegal and provided a draft of an updated vacancy announcement with theappropriate duties and requirements for a judicial assistant and asked her to review
the announcement. I did not hear back from Judge Newman on this until May 9,2023, when she sent me an email saying that she "had been awaiting word that Judge
Moore has approved the hiring of a permanent JA on posting of that opening'' andthat if she "missed receipt of notice of such approval, please resend." I responded byreminding Judge Newman (and including the prior email) that the Chief Judge had
approved the recruitment on April 27, 2023. Judge Newman seemed to be confused
about whether she could fill the position or just post the ad. After the Chief Judge
had to again explain to her that she could fill the position, Judge Newman approved
the posting on May 10, 2023. I attached a copy of these emails.
I swear and affirm under penalty of pd correct.

Sworn to and subscribed before me this J.,3

s·

1'7l

day ofm� ;).{)p1

ature of Nota11al Off,c(oy(J6'?f G 4/.JtA::iru\1:?i::l'ltle of OffiC

0 :x)J.b
My commission Expires: �./">D/

3

Sea l

From:

To:

Subject:
Date:

Judge Pautine Newman

RE: contract services
Wednesday, May 3, 2023 9: 12:33 AM

Judge Newman,
Yes, if approved by the Director, her annuity payments will continue
uninterrupted and will continue to be paid by regular deposit by OPM. Her
benefits would all remain through OPM. In addition to her pension annuity
payment, she will also receive separate earnings by direct deposit for whatever
hours she works on the bi weekly basis as your JA. She will be paid on thenormal, established pay dates like all other court/judiciary employees. When she
receives her first check will be a matter of exactly when in the pay period she
starts her employment.

--would not be entitled to travel reimbursement.
I hope this helps, let me know if you have any additional questions.

From: Judge Pauline Newman
Sent: Tuesday, May 2, 2023 9:35 PM
To:
Subject: Re: contract services
Many thanks,1111
To be clear: will her annuity payment continue undiminished and automatically, paid by regulardeposit or whatever system is now in place for her annuity?
Then will she be separately paid for the days worked during each pay period, as certified by me?
How long thereafter before she is paid? Will she receive a separate check? Is she entitled to travel
reimbursement?
Anything else we should know ?
PN

Sent from my iPhoneOn May 2, 2023, at 11:18 AM,

wrote:

Judge Newman,
She would be paid at the same grade/step that she held when she wasactively employed in your chambers (JSP 11/9). If the waiver is approved,
she would continue to receive her pension at the amount currently received
and at the same monthly interval. There would be absolutely no effect on her
pension. She can work on an intermittent basis, however, HR will need to be
notified by chambers each week of the hours worked as we will have tosubmit these to the AO in a timely manner so that she can be paid.
The AO-70, which is the form submitted to the Director of the AO in order toseek exemption from the salary off-set. I have completed the form with asmuch information as possible without additional details from you (start date)and-(her Civil Service Annuitant number). Once I have the missing
information, I will need your signature and Chief Judge Moore's signature. I
will then send it to the AO for approval by the Director. Once that is granted I
will notify you and we can officially bring-back on.

From: Judge Pauline Newman
Sent: Tuesday, May 2, 2023 11:04 AM
Subject: Re: contract services
What would she be paid for her work at the court? What formalities would be applied
to her pension status?
The arrangement should be that i would ask her to work as the need arises, and shewould be paid for days worked. I would like to see the paperwork implementing thisarrangement, including the pay rate.
Such paperwork should assure that her pension is unaffected.

Sent from my iPhoneOn May 2, 2023, at 10:40 AM,
wrote:

Judge Newman,
She would receive her full annuity (pension payment), as well as
pay for hours worked at the court. So that I can begin completingthe form for the waiver, I will need to know the following:l. Full-time or part-time
2. Approximately how many hours per week
3. Effective date of returnThank you,

Human Resources
eats for the Federal Circuit
From: Judge Pauline Newman
Sent: Tuesday, May 2, 2023 10:32 AM
To:
Subject: Re: contract services
Thank you,111 To be clear: Are you saying she would receive no
additional pay for working at the court?
PN

Sent from my iPhone

Judge Newman,
When I wrote to you on April 24th regarding­possible return, I notified you that Chief Judge Moore
has agreed to seek approval from the Director of theAO to waive the salary off-set tha-would face
as a re-employed annuitant. This means that she
would receive her full pension and salary for hours
worked here at the court. The Administrative Officeallows for courts to seek approval for an exemption
to this regulation under certain exceptional
circumstances. I am happy and ready to assist with

Human Resources
eals for the Federal Circuit
lllllillliiiii
From: Judge Pauline Newman
Sent: Monday, May 1, 2023 7:35 PM

Subject: Re: contract services

Concerning interim secretarial assistance, does the court
have a contract agency that conforms to the rules that you
describe? It is inappropriate to ask a retired federal
employee, who offers interim assistance out of loyalty tome, to yield her federal pension in exchange for an uncertain
few weeks or days of work.
The court's administration is required to provide the judges
with essential services. As you recall, I asked you several
weeks ago to post this position. You did not do so, and you
only later informed me that you were prohibited from doing
so. The present delay ensued.
The withdrawal of clerical services requires immediate
remedy, along with restoration of my position as an active
judge of the court. The court today issued the July appeal
hearing calendar and excluded me from a fourth successivemonth of hearings. I require immediate revision.
Judge Newman

Sent from my iPhone

Judge Newman,
Please find attached the vacancy
announcement from your 2021 Paralegal
recruitment.
With regard to- AO procurement
regulations only allow for us to bring her
on as a contractor if she is working with atemporary staffing agency and wecontract with the agency for her services.
Otherwise, contracting with­directly would be considered a personal
services contract. Personal service
contracts are explicitly prohibited by the
AO, with two exceptions: IT contractors
funded through JITF, and narrowly andclearly defined "experts". The AO policy
on personal services contracts can befound in the Guide to Judiciary Policy
here: https:I/jnet.ao,dcn /policy­
guidance/guide-judiciary po!icy/vo!ume14-procurement/ch-5-special-categories­
procurements#s10.
If-is working with a temporary
staffing agency, please let me know and I
can work with our procurement team onnext steps. Otherwise, we have to appoint
her as a court paid employee.

Resources

Humaneals for the Federal Circuit�
From: Judge Pauline Newman
Sent: Sunday, April 30, 2023 6:35 PM
To:
Subject: Re: Paralegal Recruitment-· please send me a copy of the priorannouncement that was used for my position
For- she is not to be a reemployedannuitant, but a contract employee whose
work days will be as she and I agree.
Sent from my iPhoneOn Apr 27, 2023, at 10:25 AM,

wrote:

Judge Newman,
In light of Chief Judge Moore's
email this morning, I am
sending along the draft of thevacancy announcement foryour chambers paralegal.
Please review theannouncement and let meknow if you have anychanges. Once theannouncement is finalized, I
will post it to the court
website, the JNet, and to
USCourts.gov. Please let meknow how you prefer toreceive the application
packages for qualified
applicants. I believe thatwhen we worked together on
your last recruitment I wouldpull them together into a PDF
packet and send them up inbatches about once a week. I
am happy to do the same thistime, if you like.
Additionally, please let meknow if I may reach out to-regarding her
temporary return. Because
she will be coming back to thecourt as a re-employedannuitant (retiree), there is alittle more involved withprocessing her appointment
and I would like to begin theprocess so that we can get thesalary exception to the AO for
approval by the Director assoon as possible. I am onleave beginning at 1:30 thisafternoon and will be out
tomorrow as well.
Thank you,

Human Resources
U.S. Court of Appeals for theFederal CircuitFrom:

To:
Subject:
Date:
Attachments:

Judge pau!jne Newman
RE: Paralegal Recl'\Jitment
Monday, May 1, 2023 3:24:00 PM
Job Announcement - para!egat toaFederal Judge <Newman).odf

Judge Newman,
Please find attached the vacancy announcement from your 2021 Paralegal recruitment.
With regard to- AO procurement regulations only allow for us to bring her on as acontractor if she is working with a temporary staffing agency and we contract with theagency for her services. Otherwise, contracting with-directly would be considereda personal services contract. Personal service contracts are explicitly prohibited by the
AO, with two exceptions: IT contractors funded through JITF, and narrowly and clearly
defined "experts". The AO policy on personal services contracts can be found in the
Guide to Judiciary Policy here: bttps;//jnet ao.dcn/poHcy-guidance/guide-judiciary­
policy/volume-14-procurement/ch-5-speci;1l-c;1tegories-procure1nents#SlO.
I�is working with a temporary staffing agency, please let me know and I can workwith our procurement team on next steps. Otherwise, we have to appoint her as a court
paid employee.

Human Resources
eals for the Federal Circuit
From: Judge Pauline Newman
Sent: Sunday, April 30, 2023 6:35 PM
Subject: Re: Paralegal Recruitment- please send me a copy of the prior announcement that was used for my position
For- she is not to be a reemployed annuitant, but a contract employee whose work days will
be as she and I agree.
Sent from my iPhoneOn Apr 27, 2023, at 10:25 AM,

Judge Newman,
In light of Chief}udge Moore's email this morning, I am sending along thedraft of the vacancy announcement for your chambers paralegal. Please
review the announcement and let me know if you have any changes. Oncethe announcement is finalized, I will post it to the court website, the JNet, andto USCourts.gov. Please let me know how you prefer to receive theapplication packages for qualified applicants. I believe that when we worked
together on your last recruitment I would pull them together into a PDF
packet and send them up in batches about once a week. I am happy to do thesame this time, if you like.
Additionally, please let me know if I may reach out to-regarding her
temporary return. Because she will be coming back to the court as a re­employed annuitant (retiree), there is a little more involved with processing
her appointment and I would like to begin the process so that we can get thesalary exception to the AO for approval by the Director as soon as possible. I
am on leave beginning at 1:30 this afternoon and will be out tomorrow as
well.
Thank you,

Human Resources
eals for the Federal Circuit�From:
To:
Subject:

Date:

Attachments:

Newman
RE: Position description
Tuesday, May 2, 2023 2:04:00 PM
Job Announcement • JA toa federal Judge /Newman 2023}.doc

Judge Newman,
Just to be sure that I clearly understand, you want to recruitment to be for a Judicial Assistantand NOT a paralegal, is that correct? The link you provided below is not working and I do not
see the announcement on the DCCA website, so I have attached an updated announcementthat includes the language we typically use on JA announcements. Please let me take a look at
it and let me know if you have changes. Once I hear back I will post it.

Human Resources
eals for the Federal Circuit
From: Judge Pauline Newman
Sent: Tuesday, May 2, 2023 1:27 PM

Subject: Position description- Please use the attached position description, from the AO site illustrating the DC Court of Appeals,
along with the other information concerning the materials to be submitted, address, etc. Please let meknow when it is posted.
PN

Court
Name/Organization:

District of Columbia Circuit Court of Appeals

Overview of the
Position:

The Judicial Assistant provides administrative, case-related, andmanagement support to a federal circuit judge and is responsible for all
day-to-day operations of the judge's chambers. The Judicial Assistantexemplifies and fosters a positive approach of professionalism, teamwork,
mutual respect, and dedication to public service. The Judicial Assistant isalso an ambassador for and representative of the chambers in all
interactions with court personnel, other judges' chambers. and the public.
The ideal candidate for this position is detail-oriented, possesses strongorganizational, administrative, and management skills. enjoys working in achallenging and collaborative environment on a wide variety of tasks. is acreative thinker and problem-solver. maintains a calm demeanor underpressure, and upholds the highest level of confidentiality. The position will
not be available sooner than July 2023.
Location:...,_

Washington, DC

Opening andClosing Dates:

03101/2023 - Open Until Filled

Appointment Type:

Permanent

Classification
Level/Grade:

Grade 5 - Grade 11

Salary:S42,870 - SI 02, 166

Announcement
Number:

USCA-23-05

LINK TO JOB ANNOUNCEMENT

------------------From:
Sent:

Tuesday, May 9, 2023 2:38 PM
Judge Pauline Newman
Chief Judge Kimberly A. Moore
RE: HR question
Support services; Paralegal Recruitment

To:

Cc:
Subject:
Attachments:

Hi Judge Newman,
The Chief gave approval to recruit for the permanent refill of your }A/paralegal position on April
27th. Please see the email attached from the Chief at 9:43AM on that date where she states that "HR will
begin the process of posting for a replacement. " Shortly after the Chiefs email, I followed-up with anemail sent directly to you on the same date at 10:23 AM (also attached) letting you know that in light of
the Chiefs approval I was sending along a draft vacancy announcement for your review/approval andthat once the announcement was finalized I would post it publicly.
After the two emails attached and referenced above, you and I exchanged several emails regarding theannouncement (highlighted below). The last email in this exchange is an email I sent to you on May 2nd,
in which I attached a draft announcement for a JA rather than a paralegal and asked that you review andapprove so that I could move forward and post it.

Human Resources
eals for the Federal Circuit
From: Judge Pauline Newman
Sent: Tuesday, May 9, 2023 1:42 PM
To
Cc: Chief Judge Kimberly A. Moore
Subject: Re: HR question

Thank you- I have been awaiting word that Judge Moore has approved the hiring of a permanent JA on posting ofthat opening. If I missed receipt of notice of such approval, please resend.
PN

Sent from my iPhone
wrote:On May 9, 2023, at 1:10 PM

Chief Judge Moore,1I have been in communication with Judge Newman regarding both the temporary rehire ofand the recruitment for a permanent fill of the JA/paral�tion in her
chambers for several weeks. I am currently at a standstill with both--rehire and therecruitment, as I am awaiting responses/approvals from Judge Newman.
Specifically, I am waiting for Judge Newman to confirm specific details o-returnand provide approval for me to begin the process of seeking a salary offset waiver from the
AO. My last email to Judge Newman regardin�was on May 3rd and I have not yet
received a response from her. -called me yesterday with HR questions specific toreturning to the court as a rehired annuitant and I am expecting a follow-up email fromher. I am also waiting for Judge Newman to approve the draft JA vacancy announcement
for her chambers position. My last email to her regarding this matter was on May 2nd and I
have not yet received a response from her.
Below is timeline of my communication with Judge Newman regarding bothmatters. Communications in blue primarily relate t�rehire and items in red
primarily relate to the recruitment for a permanent fill.
Monday, April 24, 2023
1. 2:20 PM: Telephone call with Judge Newman to discuss the temporary rehire ofwhich you approved for a period of up to 90 days, with the possibilityof an extension. I also notified her of your approval to seek a waiver of the salaryoffset that rehired annuitants are subject to, so that-could potentially receive
her OPM annuity as well as a full salary for time worked for the court. Judge
Newman denied my request to reach out to-to begin the rehire process andstated that I was not to contac�until the recruitment process begins for apermanent replacement for her }A/paralegal vacancy.
2. 4:09 PM: l sent a follow-up e-mail� Newman shortly after our call to restate
the approval to temporarily rehir�and to again offer to reach out to3. 4:53 PM: Judge Newman responded by email indicating that she requires apermanent as well as �ary solution to her judicial needs. No response to myinquiry about contac�.
Tuesday, April 25, 2023
1. 2:49 PM: I responded to Judge Newman's last email and again asked ifl could begin
the process of bringing back-to assist her in chambers.
2. 3:53 PM: Judge Newman responded by asking me to assure her that the permanent
JA recruitment will be listed promptly.
Wednesday, April 26, 2023
1. 3:24 PM: I responded to Judge Newman and explained that I was not in the position
to guarantee the posting of the permanent position due to the judicial council voteprohibiting her fr�� any permanent staff and again asked for permission tomove forward wit�.
2. 3:55 PM: Judge Newman responded stating that the court has an obligation toprovide her "statutory judicial services" and that she understands my email to meanthat the judicial council continues to refuse to allow her JA position to be filled.
Thursday, April 27, 2023
2

1. 10:25 AM: As a follow-up to the email that you sent to Judge Newman at 9:43 AM,
which authorized the recruitment for a permanent replacement fo� I
sent an email to Judge Newman containing a draft vacancy announc�
chambers paralegal. I indicated that I would get the announcement posted as soon
as she approved it I also asked if I could reach out to-to begin the process ofher temporary rehire.
Sunday, April 30, 2023
2. 6:35 PM: Judge Newman responded to my email asking for a copy of the vacancy
announcement that was used for the recruitment for her chambers paralegal in
2021. Judge Newman also stated that she did not want-to return as a re­employed annuitant but rather as a contractor.
Monday, May 1, 2023
1. 3:25 PM: I sent Judge Newman a copy of the 2021 paralegal vacancy announcement,
as requested. My email also explained the AO procurement regulations related tocontrac em loyees and provided links to the regulations. I explained that the only
way fo to return as a contractor would be through a temporary staffing
agency contracted by the court.
2. 7:35 PM: Judge Newman emailed with a question about contracting agencies. She
also expressed concern regarding-facing a salary offset as a reemployedannuitant and provided comments regarding the delay in recruiting for her
permanent position and the oral argument paneling for July.
Tuesday, May 2, 2023
3. 9:58 AM: I responded to Judge Newman reminding her that on April 24th, I notified
her that ou a eed to seek approval from the Director of the AO to waive the salaryoffset foI clearly explained again that the waiver would allow-to
receive her u I pension AND salary for hours worked at the court. I sta�t I was"happy and ready to assist with the waiver request process."
4. 10:32 AM: Judge Newman emailed "To be clear: Are you saying she would receive no
additional pay for working at the court?"
5. 10:40 AM: I wrote to Judge Newman explaining again tha�ould receive her
full annuity (pension payment), as well as pay for hours worked. I asked the judge
to provide the followin information so that I could complete the waiver request
would be full-time or part-time; 2) appro�ow
form: 1) whethe
many hours per week
will work; and 3) the effective date o -return.
6. 11:04 AM: Judge Newman wrote to ask if�ould be paid for her work at the
court and what would happen to her pen�e indicated that she wants­
to work "as the need arises" and tha�is to be paid for days worked. She also
requested to see the waiver form.
7. 11:18 AM: I responded to Judge Newman with pay rate details, restated that there
would be no effect on her pension, and indicated tha
could work on anhours to HR. I alsointermittent basis. I explained the process for reporting
provided a draft of the waiver form, detailed the additional information that I
needed Judge Newman to provide, and provided next steps.
8. 1:27 PM: Judge Newman sent an email requesting that I use a linked vacancy
announcement for a JA from the DC Court of Appeals for her recruitment. The link
did not work and the announcement was no longer on the DC Court of Appeals site.
3

9. 2:05 PM: I emailed Judge Newman to let her know that the link was broken. I asked
her to confirm that she would like to hire a JA rather than a chambers paralegal. I
provided a draft of an updated vacancy announcement with the appropriate duties
and requirements for a JA and asked her to review for postinL..10. 9:35 PM:
Judge Newman responded inquiring again whether-pension
annuity would be affected and whether she would be �ely paid for time
worked at the court. Judge Newman asked about ho�would be paid forhours worked at the court, whethe�would be eligible for travel
reimbursement, and if there was any additional information the judge needed toknow.
Wednesday, May 3, 2023
1. 9:13 AM: I responded to Judge Newman with assurance that, if approved by the AO,-annuity payments will continue uninterrupted and that in addition to herannuity she will also receive a separate payment for her earnings for whatever
hours she works for the judge. I further explained the method and timing of
payments and notified Judge Newman tha�is not eligible for travel
reimbursement.
Monday, May 8, 2023
2. 4:22 PM:s oke wittallllby phone, returning a voice mail that she left for me at
3:30 PM. .
had �er of questions regarding the effect on her pay andbenefits o returning as a rehired annuitant. I provided answers to the questions I
was able to and promised to follow-up with answers to those questions that
required more research. -stated that she would prefer to have all of theanswers in writing and said that she would send me an email with all of herquestions.

Please let me know if you have any questions.

Human Resources
eals for the Federal Circuit

From: Chief Judge Kimberly A. Moore
Sent: Tuesday, May 9, 2023 10:21 A
To:
Subject: HR question

Can you please check in with Judge Newman because weeks ago her requests forjudicial assistance were approved? Why hasn't this moved forward? As I
understand it:
4April 19:
resigned from Judge Newman's chambers on April 19, 2023
and asked that there be no further communication between him and Judge
Newman. He was assigned to our Clerk's Office where he now works.
Judge Newman requested that she be permitted to bring back her former judicial
assistant,-who her chambers claimed was ready and willing to comeback. As I understand it, you contacted the AO to determine how to bring back-(a retired annuitant) in a manner which would not diminish her retirement
annuity. I agreed to petition the AO to waive the salary set-off that-would
face as a reemployed annuitant. This way-would receive her �irement
annuity and get paid for any hours she worked at the court.
April 24: I understand you to have communicated th�val to brin�backto Judge Newman on April 24 including the fact that-will be bro�k ina manner which allows her to keep both her full retirement annuity and get paid.
April 27 (9:43 am): I sent Judge Newman an email (copying you) which approved
her request to advertise to hire a permanent paralegal/assistant.
Given that her request for temporary assistance was approved 16 days ago (just 5
days after her assistant resigned) and that her request to advertise for a permanent
replacement was approved 13 days ago, I am confused about her below claims thateither I or the court continue to deprive her of what she refers to as secretarial
services.
Can you update me on this process and reach out again to Judge Newman?
With gratitude,
Kimberly Moore
The Honorable Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit
From
Sent: Monday, May 8, 2023 5:21 P
To: Chief Judge Kimberly A. Moore
Subject: Fwd: Governance and Education Travel Report (fka Non-Case Related Travel Report) Report
Due May 15-

Chief,
See PN's response below.

From: Judge Pauline Newman
Sent: Monday, May 8, 2023 5:To:
5

Cc: Judge Pauline Newma
Subject: Re: Governance and Education Travel Report (fka Non-Case Related Travel Report) Report Due
MaylS-I do not choose to do secretarial work, whether or not any senior judges are obliged to doso. My JA routinely keeps these records and fills out these forms for my review. It appears that the
court chooses to continue to deprive me of routine services.
PN
Sent from my iPhoneOn May 8, 2023, at 4:23 PM,

wrote:

Judge Newman,
Almost all the senior judges enter this information in Infoweb
themselves and many of them do not have secretarial support. This is amandatory report required by all judges; only you have yourinformation about your travel. You will need your credentials for
Infoweb, and here are the instructions on how to enter the data. It is avery user-friendly system. Perhaps one of your law clerks could assist
you. If your staff has any questions, I'd be happy to answer them.
Best,

Chambers of Chief Judge Kimberly A. Moore
U.S. Court of Appeals for the Federal Circuit
717 Madison Place NW

From: Judge Pauline New

Se
To

Subject: Re: Governance and Education Travel Report (fka Non-Case Related Travel
Report) Report Due May 15-since I don't at present have a JA, by action of the Chief Judge, please advise
how the court proposes to assist in handling these reporting requirements.
PN
Sent from my iPhoneOn May 8, 2023, at 3:09 PM,
wrote:
6

Good afternoon,
This email is a friendly reminder that the Governanceand Education Travel Report (fka Non-Case Related
Travel Report) is due May 15. This report must becompleted even if your judge didn't do any relevant
traveling in 2022, which is known as a negative report.
I've reviewed the entries and noticed that some hadn't
clicked the Certify Travel button. So please be sure to
do so by May 15.
Use tilts system to record governance and education travel information as requi'ed by the Judlcit
here forwJtb the Judoes·
Trayet ReD.Q.!11ng..JY.

ntto

Goyemance and Education

Select the entry you wantto edit or delete, then dick on the Edit Entry or
Delete Entry button.
..
6/1412022 to 6/1812022 Sea Island, GA
9/112022 to 9/412022 Atlanta, GA
9/812022 to 9/9/2022 Washington, DC

9001'0" tn 9oono" W:ti.hlnntnn n�Also, if your judge attended our Judicial Conference, it isa reportable item, according to The Guide to Judiciary
Policy. Please see the rule below and refer to yourjudge. Please let me know if you need me to decertify you
to make any changes.

7§ 270.30 Examples of Governance and Education Travel
1. (a}Governance and Education Travel That Must Be Reported (unless the juc
and is not reimbursed in any way for the expenses), includes:
1. (1}Travel related to court governance. For example, travel to:
1. (A)meetings of the Judicial Conference and it:
2. (B)circuitjudicial conferences or meetings pla
3. (C)meetings of circuit judicial councils or their
4. (D}meetings of the circuit courts or their com
5. (E)meetings of the district courts or their com
6. (F)meetings of bankruptcy judges or bankrup
7. (G)meetings held at. sponsored, or organized
2. (2}Travel to attend educational seminars or programs sponsc
government agencies, universities, and law schools. For exan
1. (A}educational seminars or programs sponso,
other sponsor;
2. (B)meetings sponsored by bar associations or
professional societies;
3. (()participate in moot courts or to lecture or •4. {D}attend sentencing institutes or to visit pris,
3. {3)Travel made under the auspices of or at the request of the
For example, travel to programs sponsored by:• the Department of Justice,• the Department of State,• the library of Congress. or• any other agency of the federal government.
4. (4}Any other travel undertaken in the discharge of the duties
identified with a particular case or cases assigned to the jud�I will be on travel next week with t�ou
need me, please email or text me at- and I
will get back to you as soon as possible.
Thanks,Chambers of Chief Judge Kimberly A. Moore
U.S. Court of Appeals for the Federal Circuit
717 Madison Place NW
Washin on DC 20439

8

[Affidavit 4]

4.

During these exchanges, Judge Newman levied various accusations
against me including (1) multiple assertions that I was both acting as
counsel for Chief Judge Moore and as her "adversary," (3) repeatedassertions that I was withholding secretarial services from her, (4)multiple allegations about the "illicit removal" of equipment from herchambers, (5) multiple allegations of removal of chambers records, and (6)the making of false statements to both her and her legal counsel.

5.

These email exchanges were troubling to me for several reasons. First, it
appeared to me that from one email to the next Judge Newman either did
not read or did not recall the lengthy prior explanations I provided to her.
Second, Judge Newman demonstrated an adversarial approach toward meeven aftei· I explained my lack of involvement with aspects of hercomplaints to me. Third, in an effort to still provide Judge Newman withclarification, I found it necessary to take a firm tone of a nature I havenever had to take in my six years of working with Judge Newman at the
court. Finally, the hostile nature of Judge Newman's personal accusations
against me stands in sharp contrast to how I have interacted with any of
the other 50-or-so federal judges with whom I have worked both in theFederal Circuit and in other federal courts since I began working in thefederal judiciary in 2004.

6.

From these perseverated accusations against me by Judge Newman, I
experienced emotional stress and discomfort, including loss of sleep andPage 2 of 11

heightened anxiety upon receipt of an email message from her and thenattempting to craft a suitable response to her. In addition to my own
encounters with Judge Newman, I also provided support andencouragement to other membe1·s of court staff who were experiencing
similar difficult interactions with Judge Newman. As part of myconversations with members of court staff and the difficulties they wereexperiencing with her, I requested that staff attempt to engage inconversations with Judge Newman only by email or to bring a second
person along if required to go to her chambers.
Judge Newman Chambers Staff
7.

On April 20, 2023, I transmitted to Judge Newman and her chambers
staff a memorandum from her former paralegal,Thememorandum included, among other things, details about the location ofher chambers files.
8.

In response to my email, Judge Newman requested assistance with an
opinion she anticipated having ready for processing for release. I advised
her of the email address for processing opinions in the Clerk's Office, towhich she cla1·ified that she needed assistance with incorporating hard
copy edits into her draft opinion and wanted to know "how do [I] envision
providing these services on a regular basis." Exhibit A.

9.

I explained to Judge Newman that the Clerk's Office could assist withgetting her edits by fax but that her law clerks were the only staff with
Page 3 of 11

access to the electronic version and would need to incorporate her edits for
final review. Judge Newman responded that this was "secretarial work,
not law clerk work." Exhibit A.
10.

Following a second accusation of withholding secretarial services on April
24, 2023, I explained that the service Judge Newman was requesting fromme and the Clerk's Office "would result in the providing of expanded
services and support beyond my existing authority" to provide services toany of the other judges of the court. Exhibit B.

11.

Notwithstanding my explanation on April 24, 2023 and my third attempt
on May 17, 2023, Judge Newman persisted in alleging I "deprived [her] of
secretarial services" another time on May 17, 2023. Exhibit D.

12.

On April 25, 2023, I spoke by telephone with Judge Newman's counsel,
Greg Dolin, to coordinate electronic service and filing of documents withthe court. On the call, Mr. Dolin inquired what could be done to restore
services to Judge Newman. I clarified for him on the phone, and again ina follow-up email shortly thereafter, that "Judge Newman has continued
and continues to have full access to her chambers materials and theability to transmit opinions to the Clerk's Office for issuance" and that I
had already clarified this fact with Judge Newman that morning. Exhibit
E.

13.

Judge Newman replied all to my email to her counsel on April 26, 2023,
and accused me of having "withheld from my counsel the information that

Page 4 of 11

you refused to permit filling the paralegal/secretarial position in mychambers, unlike all the other judges." Exhibit E.
14.

I replied all to Judge Newman and her counsel on April 27 recounting thesame details I had previously explained to her by email, including myrequest that she address her staffing concerns with either the Chief Judgeor the Judicial Council, not me.

15.

For the benefit of her counsel, I explained in the detail the services Judge
Newman was being provided by the Clerk's Office and the efforts I had
taken in response to Judge Newman's concerns. I also clarified for her
and her counsel that I had already clarified these points for Judge
Newman by email on April 25, 2023.

16.

At no point was I involved in any decision concerning the departure ofstaff from Judge Newman's chambers. Likewise, during the period at
issue, I had no authority to direct the staffing decisions as to Judge
Newman's chambers or any other chambers of the court.

Case Management of the Judicial Complaint
17.

On April 21, 2023, the Clerk's Office received three hand-delivered lettersfrom Mark Chenoweth of the New Civil Liberties Alliance. The letterswere addressed to Chief Judge Moore and handed to me by a member of
the Clerk's Office staff upon delivery, upon which I transmitted the lettersto the Special Committee.

Page 5 of 11

18.

Because the letters did not include either an entry of appearance bycounsel or any notation reflecting that Judge Newman was aware of theentry of appearance on her behalf, I emailed Judge Newman on April 22,
2023, for clarification at the direction of the Special Committee. Exhibit
B.

19.

In response to my email on April 24, 2023, Judge Newman confirmed who
was serving as her counsel and then asked me to "please confirm that you
are serving as counsel to Judge Moore." I clarified that I was "not serving
as legal counsel to Judge Moore" but rather was serving as ''acting clerk"in the absence of the then-clerk. Exhibit B.

20.

Without explanation, Judge Newman replied the same day that "it seems
clear that you are acting as counsel for Judge Moore, and as adversary tome, a member of the court. Otherwise, why haven't you assisted me inyour role as Clerk? I need secretarial services, that you continue towithhold." Exhibit B.

21.

I responded that her request for additional support was previously
addressed by Chief Judge Moore and clarified that she is receiving thesame level of service being provided to every other judge. To underscoremy point and need to maintain my neutrality in this matter, I"respectfully ask[ed] that [she] direct any additional concerns about the
Clerk's Office's role and authority to the Chief Judge and/or Judicial
Council." Exhibit B.

Page 6 of 11

22.

The next day, Judge Newman wrote back that she "note[d] [my] responseon behalf of Judge Moore" and wanted to know my authorization. I
declined to respond.

23.

Contrary to Judge Newman's allegation of responding on behalf of Chief
Judge Moore, I did not confer with Chief Judge Moore before replying toJudge Newman on April 24, 2023.

24.

Due to the sensitive nature of this matter, I continue to serve as the casemanager in this case and have coordinated an agreement with Judge
Newman's counsel for them to send electronic filings to the court throughme and for me to serve them electronically with filings from the court.

Judge Newman Equipment and File Access25.

On April 24, 2023, Judge Newman emailed me with the subject line
"Where is our computer?" and alleging I directed its removal from herchambers. She also asked for my authority to take "my chambers'
equipment." Exhibit C.

26.

Because I did not know what Judge Newman was talking about, I asked
for clarification, which she said was the computer at her secretary's.station. I replied that I did not direct such removal and that I would
contact our IT staff to address the matter.

27.

The next day I sent a lengthy email to Judge Newman apologizing for the
confusion about staff movement and the equipment in her chambers. I
noted that I directed IT staff to replace the computer in her chambers that
Page 7 of 11

day and that "nothing about the move of this desktop ever hindered,
restricted, 01· interfered with access by either y'Ou or your chambers staff
to her chambers reco1·ds" because all records were located on her
chambers network file.
28.

I further clarified for her that it was "longstanding court policy" thatcomputers are assigned to individuals and not to a specific office and thatthe assigned computer relocates with the pe1·son when they move locations
or offices. In other words, court staff followed existing court policy,
contrary to Judge Newman's assertions.

29.

Additionally, I confirmed for Judge Newman that her fo1·mer staff
member,had his access to her chambers records upon histransfer the prior week.
30.

On May 15, 2023, Judge Newman emailed Chi,ef Judge Moore and copied
all judges requesting the "immediate return of my JA-desk computer, forit contains important records." Judge Newman again repeated theallegation that the computer was an ''illicit removal." Exhibit D. Becauseof my prior communications with Judge Newman on this point, Chief
Judge Moore forwarded me the exchange and asked me to respond.

31.

On May 16, 2023, I responded to Judge Newman as my fourth attempt toaddress her access to her chambers records. In addition to my repetitionof the same facts to her, I added that both I and a member of the IT staff
personally inspecteds desktop and confirmed that he had "noPage 8 of 11

remaining documents or records from his time in your chambers orrecords that belong to you." Exhibit D.
32.

In another attempt to help her explain court policy on the relocation of
court desktops, I explained to Judge Newman that when her priorassistant left her chambers, that desktop was :removed and all files weretransferred to her network drive. A new desktop was issued to herchambers when

33.

started two years prior.

Again, I noted that "[f]rom my extensive and r,epeated review of thissituation ... it appears that our staff have agaLin followed this standard
policy without exception or differential treatm,ent to you." I also
expressed my objection to Judge Newman's ch:aracterization of the
conduct by staff. Exhibit D.

34.

Judge Newman replied shortly thereafter and asked me to send someone
to her chambers when she arrived to help "find the material that wasstored in the computer at the JA desk." Exhibit D.

35.

Later that afternoon, Judge Newman called my office to speak with me.
As I was out of the office for the afternoon, someone in my office gave me
the message and I asked

in IT to go to chambers to assist

Judge Newman locate her files.
36.

Around 2:44 p.m.,sent me a mese;age that he had no successwith Judge Newman. I called him to discuss what happened. On the call
was audibly upset and bothered a.nd he said it was due toPage 9 of 11

how Judge Newman behaved and treated him when he was attempting tohelp her locate her files. I asked

to send me an email

summary of what happened, which he did by 3:17 p.m. Exhibit F. Of
note,reported that Judge Newman expressed that"­- [sic] stole all of her files. I have no JA. I want my PC and Phone
back. No one from my chambers or myself will do the job of an [sic] JA"
and Judge Newman wanted the Clerk's Office to assist her.
37.

Because ofexperience and Judge Newman's request for

Clerk's Office assistance, the next morning I emailed Judge Newman myfifth attempt to explain the cil·cumstances of the compute1· and herchambers records. Taking a m01·e assertive tone than in my pastmessages, I criticized Judge Newman for being "agitated, belligerent, anddemonstratively angry" withand for her again levying

accusations about staff denying her access to her chambers records. In
hopes of resolving the matter with Judge Newman, I even offered to allow
either her or her staff to personally inspect Mr.

s desktop. I

concluded my message by asking Judge Newman and her staff to take amore respectful approach toward any future staff that attempt to assist inchambers. Exhibit D.
38.

Again missing the three points of my prior communications that (1) there
were no chambers records on any desktop, (2)did not retain

access to or possess any of Judge Newman's records, and (3) Judge

Page 10 of 11

Newman and her staff have always had access_ to the chambers network
files, Judge Newman responded that "everything on my chambers
computer is the property of my chambers. It does not belong to a departed
employee." Exhibit D.
39.

Judge Newman ended her May 17 email to me by noting that"proposed to teach [her] how to perform secretarial operations on mycomputer, now that you have deprived me of secretarial services. I
declined." Exhibit D. From my prior May 16 phone call with
I understood that the "secretarial operations" he was attempting to teachher was how to open her Financial Disclosure file so she could prepare he1·
annual filing.

40.

Because Judge Newman's May 17 response continued to disregard myseveral prior attempts to explain things to her, I declined to respond.

DATED this3/sr day of ll�Nj--_,, ]d2/2_..;.

day of_� �........
�-- 202..:::>

Sworn to and subscribed before me thisNotary PublicPage 11 of 11

EXHIBIT

Sent:

Judge Pauline Newman
Friday, April 21, 2023 10:39

Subject:

Re: Chambers 801 Transition Memo 4.20.23

From:

To:

That is secretarial work, not law clerk work. My law clerks are performing other as assignments.
Sent from my iPhone

wrote:On Apr 21, 2023, at 10:04 AM,

My apologies as I misunderstood your request.
Is there anyone in chambers today who can receive your edits by fax? If not, one of
us can get it and scan it to them. Since you1· law clerks have access to the electronic
file, they would incorporate your edits for your final review. Vve can then work with
one of your law clerks on the transmittal once the edits are incorporated into theelectronic version.

lerk's Offices for the Federal Circuit

I www.cafc.uscourts.gov
From: Judge Pauline Newman
Sent: Frida A ril 21, 2023 9:5
To:

Subject: Re: Chambers 801 Transition Memo 4.20.23

It will be in hard copy with my edits, and 1 will need to see if in its final form.
Also, I am working from home today.
How do you envision providing these services on a regular basis?

Sent from my iPhone1On Apr 21, 2023, at 8:50 AM

wrote:

Judge Newman,
You can email it to
it into the system for processing.

nd we will upload..

<lmage00l.png>

�. Clerk's Office
U.S. Court of Appeals for the Federal Circuit

I www.cafc.uscourts.gov
From: Judge Pauline Newman
Sent: Frida , A ril 21, 2023 0:36
To:
Subject: Re: Chambers 801 Transition Memo 4.20.23- I expect to have a completed draft of an opinion tomorrow. Who should I send it
to, to process for release?
PN
Sent from my iPhone

Good afternoon,
Per Chief Judge Moore's April 19, 2023 email, I amtransmitting the Chambers 801 Transition Memo that
prepared and submitted to me as final a few
minutes ago.

�k, Clerk's Office
U.S. Court of Appeals for the Federal Circuit
2

I www.cafc.uscourts.gov

EXHIBIT

B

Sent:

Judge Pauline Newman
5, 2023 0: 10
�Subject:

Re: Clarification of Counsel Submission

From:
To:

-• I note your response on behalf of Judge Moore. What is your authoriz:ation?
Judge Newman

Sent from my iPhoneIll wrote:

On Apr 24, 2023, at 10:39 AM,

Judge Newman,
If they are appearing as your counsel, we need them to e,nter an appearance in thematter per court rules so they can appear, be served on your behalf, and participate
in the pending disability and misconduct matter as outlined in those rules.
Concerning your request for additional support, Chief Judge Moo1·e addressed yourrequest by email last week. The Clerk's Office remains available to provide theservice I originally offered to you-assistance with trans:mitting to the Clerk's Officea final opinion for docketing and issuance-that we provide to all the judges of thiscou1't. To be clear, I am not seeking to act adverse to you and remain available toprovide any of the existing services and support the Clerk's Office provides to any of
the court's judges per our statutory and regulatory authority. However, because
your requested service from the Cle1·k's Office would result in the providing of
expanded services and support beyond my existing authority, I cannot do so without
the approval and direction of the Chief Judge or Judiciall Council.
As such, and so that I can continue to remain neutral in fulfilling my administrativeand ministerial duties to you and the other judges of the, court, I would respectfully
ask that you direct any additional concerns about the Clerk's Office's role andauthority to the Chief Judge and/or Judicial Council.
Regards,

Clerk's Office

Is for the Federal Circuit

I www.cafc.uscourts.gov
1

From: Judge Pauline Newman
Sent: Monday, April 24, 2023 10:04

To:

Subjeft: �larification of Counsel Submission

� there is no litigation; what is the "entry of appearance?"
In addition, it seems clear you are acting as counsel for Judge Moore, and as adversary to me, amember of the court. Otherwise, why haven't you assisted me, in your role as Clerk? I need secretarial
services, that you continue to withhold.
PN
Sent from my iPhone

wrote:On Apr 24, 2023, at 7:28 AM,

Judge Newman,
Thank you for confirming this for me. I will reach out to your counsel
this morning about the entry of appearance paperwork.
To clarify, though, I am not serving as legal counsel to Judge
Moore. My capacity here is as acting clerk in light of-'s absence.
Regards,<ima ge00l.png>

�k, Clerk's Office
U.S. Court of Appeals for the Federal Circuit

I www.cafc.uscourts.gov
From: Judge Pauline New
Se
To:
Subject: Re: Clarification of Counsel Submission
To

Responding to your question, the New Civil Liberties Alliance is serving as my counsel, as
stated in the letter from its Presideni and General Counsel Mark Chenowith, to Judge
Moore.
Please confirm that you are serving as counsel to Judge Moore.
Pauline Newman
2Sent from my iPhone

Judge Newman,
On Friday, the special committee received a letter fromMark Chenoweth of the New Civil Liberties: Alliance inwhich he states he is your counsel and filing the letter on
your behalf. The letter was neither accompanied by anentry of appearance nor included a copy linH on the letter
indicating that you were aware of such a filing.
Because of the sensitive and confidential nature of thisinquiry, the committee asked me to clarify with you
whether M1·. Chenoweth is appearing as your counsel inthis matter before anything is sent to him. If Mr.
Chenoweth is your counsel, I will reach out to him on
Monday morning to coordinate without delay his entry of
appearance and motion to appear pro hac viice on yourbehalf.
Regards,

erk's Officefor the Federal Circuit<image00l.png>-I www.cafc.uscourts.gov

3

EXHIBIT
From:
Sent:
To:
Subject:

C

Judge Pauline Newman
�25, 2023 11:42
�ur computer?

(

Follow Up Flag:
Flag Status:

Follow up
Completed

The disruption to my chambers, the loss of my time, is irremediable. And inexcusable.
Judge Newman
Sent from my iPhoneOn Apr 25, 2023, at 10:52 AM,

rote:

Judge Newman,
I was only speaking about the JA desktop. If there is something missing or wrong
with your desktop, I will have someone from IT work with you on locating. We havenot made any adjustments to your individual desktop. If you need us to provide youwith an updated caption or opinion template, let me know and we will send it
promptly.
As I understand it, the decision to relocate-,ut of chambers came from Judge
Moore, per her email to you last week, as p�an ongoing employment disputematter, of which I am not a party or participant. The subsequent movement of thedesktop was standard procedure and not specific to this situation. Now that you
have clarified that the device was not replaced, I have spoken with our IT staff andthey will be replacing it today with the same access and setup that_
had. Because the removed device did not have your chambers records on it as those
items are stored on your chambers network drive, at no point did you or yourchambers staff lose access to those materials.
Having read the transition memorandum from-sent to you and your chambers,
he explained in there where on your network drive he saved various
items. Likewise, he has remained available-through a request to me-to assist
anyone in your chambers with locating any items you need.
I hope this further clarifies this situation for you.
lllliil1lly,�. Clerk's Office
U.S. Court of Appeals for the Federal Circuit
www.cafc.uscourts.gov

From: Judge Pauline Newman
Sent: Tuesday, April 25, 2023 10:31
To:
Subject: Re: Where is our computer?
Thank you, - I point out some inaccuracies in your recitation. Yeisterday we sought to provide an
official caption and some historical material that was not available on my desktop.
Also, please explain the authority by which this equipment was removed. The disrupt_ion to mychambers, the loss of my valuable time, awaits explanation.
Judge Newman

Sent from my iPhoneOn Apr 25, 2023, at 9:46 AM,

�rote:

Judge Newman,
My apologies for the confusion here about the staff movements andequipment. I spoke with IT staff this morning and a computer will be
returned to the JA desk in your chambers, which will have full accessto your chambers network drive and all of the same materials
previously available to your JA and the 1·est of your chambers
staff. Because all of your chambers materials, drafts, and documents
are stored on your chambers netwo1·k drive and not the local desktop,
nothing about the move of this desktop ever hindeired, restricted, orinterfered with access by either you or your chamlbers staff to thesematerials.
Under longstanding court policy, computers are a:ssigned to individuals
when they start at the court and not to a specific office. When that
person moves offices, the computer moves with the person. This iswhat happened last week when ...elocated to the fourth floor. I
spoke with-this morning and confirmed that during his time inyour chambers he never saved any chambers infOJcmation on thedesktop but always saved everything-your chambers memos, drafts,
forms, etc.--on to your chambers network drive. ]Moreover, I confirmedwith IT that-s access to any of your chambers files was removed
upon his transfer last week.
2

In-s transition memo that I forwarded to you and your chambers
staff last week,.explained where he kept all drafts and materials
in your chambers network drive. If you would like him to show you oranyone else in your chambers where items are saved, please let me
know. Our IT staff can also assist you with locating these items.
I hope this clarifies this matter for you. Please let me know if I can beof additional assistance in remedying this matter.
lllliiiiiifully,<lmage001.png>

lerk's Officefor the Federal Circuit
www.cafc.uscourts.gov

From: Judge Pauline New

Se
To:
Subject: Re: Where is our computer?

In your position as (acting) clerk of court, please ascertain who instructed the removal of
my chambers equipment.
Judge Newman
Sent from my iPhone-

Judge Newman,
I did not direct that removal and will contact IT to fix the matter.

Chief Deputy Clerk, Clerk's Office
U.S. Court of Appeals for the Federal Circuit
www.cafc.uscourts.gov

From: Judge Pauline Newman
Sent: Monday, April 24, 2023 5:03:00 PM
3

To:
Subject: RE: Where is our computer?

The computer at the JA/Secretary's station.

From:
Sent: Monday, Apri 24, 20
To: Judge Pauline Newman
Subject: RE: Where is our computer.

Judge Newman,
Respectfully, I have no idea what you a1·e talking about asI never gave such an order. What computer is missing?

<image00l.png>-- Clerk's Office
U.S. Court of Appeals for the Federal Circuit
www.cafc.uscourts.gov

From: Judge Pauline New
Se
To:
Subject: Where is our computer?

-

My office computer is not here; I understand it wasremoved at your instructions. Please restore it
immediately - I need the drafts, forms, and information
present on that machine. Please also explain yourautho1·ity to take my chambers' equipment.
Judge Newman

4

EXHIBIT

l)

From:
Sent:
To:
Subject:

Judge Pauline Newman
Wednesda May 17, 2023 9:13
Re: Please return my computer- everything on my chambers computer is the property of my chambers. It does not belong to a departed
�ee.
As fo�s visit yesterday, he proposed to teach me how to perform secretarial operations on my computer,now that you have deprived me of secretarial services. I declined.
Judge Newman;
Sent from my iPhonerote:

On May 17, 2023, at 8:51 AM

Judge Newman,
Yesterday, I provided a fourth attempt to explain the circumstances of the co�r
�our judicial assistant's desk and that there are no rec01·ds of yours on -s computer. Today is my fifth attempt.
In response to my email yesterday, you asked for someone to come to you1· chambers
when you got in to show you how to locate the files that you needed. Shortly after
you called my office to _say you were in, I asked --head of our help deskand someone who has provided tech ical su o�many years-to go toyour chambers, -brought along MIM
from our IT staff to also
assist. Because no one in the Clerk s
ce as t e ability to access your chambers
network files, only a member of our IT staff or your chambers staff can actuallyassist with locating them.
Shortly after leaving yolll· chambers, -called me to report the following. He
shared that you were looking for the files to complete your annual financial
disclosure and to access your travel documents, which are stored on your chambers
Y drive. -has assisted with locating these files for you annually for the past few
years an�ured me he knew where they were. When he attempted to assist you
yesterday, you became agitated, belligerent, and demonstratively angry withhim. In short, you refused to let him help you. Because you did not want him
touching your computer, he offered to show your law clerks where to find those files
and to set up the access to those files on the desktop at your judicial assistant's
desk. You again refu,sed. I understand you also said that this was work that the
Clerk's Office should be doing, accused your forme1· employee-of
stealing your files, and you alleged that a PC and a phone we�n fromyou. He left your office out of concern that he would further upset you. To say that1�as shaken up on the phone when recounting his interaction with you and yourconduct toward him would be an understatement.
Having refused our assistance, you again levy accusations that we are denying youaccess to your chambers information. Because my four prior exchanges have notsufficiently explained this matter to you; I can ask our IT staff to provide -s desktop to you for examination by either you or your staff to confirm what I
have already communicated to you.
Alternatively, and notwithstanding how you treated him yesterday,.is morethan willing to come back to your chambers and help you find these files. If he or
any other member of court staff does return, I respectfully request that they betreated with appropriate dignity and respect by you and any member of yourchambers.
Please let me know how you would like to proceed.

lerk's Officefor the Federal Circuit

I www.cafc.uscourts.gov
From: Judg P uli N wm
Se
To:
Cc: Chief Judge Kimberly A. Moore
Subject: Re: Please return my compu er- i am now told that the computer that was on my assistant's de:sk, is now with- I
require return of that computer and all the information it holds.
If he needs a computer, it is not the one he took from my chambers anid that holds my information.
Judge Newman

Sent from my iPhone�rote:On May 16, 2023, at 8:55 AM,

Judge Newman,
Let me know when you are in chambers and I will send someone up to
assist.
2

<image001.png>

lerk's Office

I www.cafc.uscourts.gov
From: Judge Pauline NewmaSe
To:

Cc: Chief Judge Kimberly A. Moore
Subject: Re: Please return my compu er

I will be in chambers later this morning. Please send someone to find the material thatwas stored in the computer at the JA desk. This includes important records.
Judge Newman
Sent from my iPhone

Judge Newman,
Following receipt of Chief Judge Moore's below email
yesterday afternoon, I personally inspectedsdesktop and found no remaining documents or records
from his time in your chambers or records that belong toyou. Additionally, I requested a member of ITO staff also
inspect his desktop and the staff member confirmed, as I
had, that there were no 1·emaining documents or recordsof yours on his
p. As part of this review, I also
. asconfirmed thatno access to your network drive.
In reviewing my records, I have previously addressed thismatter with you by email twice beginning on April 24 andcontinuing through April 25, wherein I explained that thedesktops in every chambers are assigned to the individual
and not the location. I confirmed that in this instance our
IT staff followed long-standing policy and mo�s
desktop with him, and I confirmed with both� IT
then-and again today-that any documents concerning
your chambers were saved to your chambers network
drive at the time of his departure from your3

chambers. -s transition memo to you on April 20,
2023 explained the location of various item as well. For
your reference, I am reattaching our two email exchanges
from April 24-April 25 and the transition memo from
April 20. Our IT staff remain available to assist you withlocating any records you may need on your chambers
network drive.
On April 27, 2023, we had a third email exchange
concerning the issue of a desktop in your chambers, yourability to access files, and an explanation of how we
handle desktops and file access when staff change
desks.. Your legal counsel were also copied on thisexchange, and for your reference, I am also attaching a
copy of that exchange for your awareness.
Finally, I will add to this conversation that whenleft your chambers and upon-s arrival two years ago,
our IT staff removed her des�om your chambers,
confirmed that any files she had were stored on yournetwork drive, and then issued-a new desktop which
was in thermat as the �p currently in yourchambers.
s assigned desktop was then wiped andprepared fo1· issuance to a new staff member.
I understand that you may not have been aware of thispolicy, but it nonetheless is and has been our policy for allchambers and court staff for some time. From myextensive and repeated review of this situation here, itappears that our staff have again followed this standard
policy without exception or differential treatment toyou. Respectfully, your continued characterization thatthe 1·e·moval of the desktop was "illicit" is contrary toyears of court operational policy and practice-including
the handling of equipment with prior departures fromyour chambers-and unfairly maligns the staff of thiscourt.
I hope this clarifies this matter for you.

lerk's Office

I www.cafc.uscourts.gov
4From: Chief Judge Kimberly A. Moore
Sent: Monda Ma 15 2023 15:05
To:
Cc: Judge Pauline Newman
Subject: FW: Please return my computer-

I believe you have had several communications with Judge Newmanovers computer. Can you please respond to her concerns
expressed below?
Thank you,
Kimberly Moore
Kimberly A. Moore
Chief Judge
U.S. Court of Appeals for the Federal Circuit

From: Judge Pauline Newma
Sent: Monda Ma 15 2023
To: Chief Jud
Cc: All Judge
Subject: Please return my computer

To Judge Moore:
Please instruct the immediate return of my JA-desk compute1·, for it
contains important records. The computer that was eventually
returned, after the illicit removal of this and other equipment from mychambers, is blank.
Judge Newman

5

EXHIBIT

From:

Thursday, A, ril 27, 2023 8:23
Judge Pauline Newman
Greg.Dolin@ncla.legal; mark.chenoweth@ncla.legal
RE: CONFIDENTIAL: Follow up

Sent:
To:
Cc:

Subject:

Judge Newman,
Respectfully, I have not withheld any information from your counsel and stand by what I statedin the below email. As I previously explained to you by email on April 24, 2023, your concerns
about staffing for your chambers need to be addressed to the Jiudicial Council and not me. I was
not involved in the decision concerning the removal of staff from your chambers or the questionof whether to fill the vacancy. Your request for expansion of seirvices by the Clerk's Office­namely direct secretarial support and assistance with editing and preparing opinions-is outsideof the scope of our authority or services we provide to any othe:r judge of this court. Accordingly,
I promptly referred your request to Chief Judge Moore, who responded to you the sameday. Absent a contrary direction from either the Chief Judge Cir the Judicial Council, I cannot
proceed and so again, I request that you direct your concerns to them.
The Clerk's Office remains available to provide the same services to you that we provide to any
other chambers, which we have done so since the beginning of this matter. Specifically, we havecontinued to provide you with IT support and assistance; full access to existing communicationand network systems; and the processing of judicial directions from you and your chambers,
including promptly issuing an opinion on your behalf earlier this week. Once you alerted me tothe issue of a removed desktop from your chambers, I attempted to clarify for you what
happened; explained that the movement of the desktop from your chambers was standard policy
when a staff member changes desks; explained that even with the movement of the desktop
there was no chambers information on the device as all of your· chambers records were saved toand available on your private chambers network drive; and directed the prompt restoration of adesktop to your chambers, which has since happened. I explai:ned this all to you over several
email exchanges ending on April 25, 2023.
You have my consent to share our several email exchanges with your counsel.

- Clerk's Office
U.S. Court of Appeals for the Federal Circuit

I www cafc.uscourts.gov
From: Judge Pauline Newman
Sent: Wednesday, April 26, 2023 17:40
1

To:
Cc: Greg.Dolin@ncla.legal; mark.chenoweth@ncla.legal
Subject: Re: CONFIDENTIAL: Follow up- you have withheld from my counsel the information that you refused to permit filling the paralegal/secretarial
position in my chambers, unlike all the other judges. My judicial activity Is highly prejudiced.
Judge Newman

Sent from my iPhoneOn Apr 25, 2023, at 10:52 AM,rote:

Mr. Dolin,Thank you for speaking with me by phone moments ago.
Appearance and Admission. Since my earlier message to Judge Newman, theJudicial Council has waived the need for formal entl'Y of appearance. Because you
clarified that you a1·e now lead counsel on this matter and a member of the Federal
Circuit bar, this is moot anyway. We do not require any separate filing on thispoint.
Service and Filing. In order to expedite the receipt by you and the Judicial
Council of all matters and avoid the need for paper delivery and service, we agreed
to the following process.
1. If needed, any future filings with the judicial council on this matter can beemailed to me at this address. Please send anything in PDF format
encrypted using the same password we agreed to by telephone.
2.

I will serve any orders and items from the judicial council or the special
committee to you, Mr. Chenoweth, and Judge Newman by email in the sameformat, again using the same password.

Copy of Current Orde1·s. I will transmit by email to you today all orders alreadyentered in this matter. The files will be encrypted with the same password.
Access to Court Resources. While on the phone, you asked for clarification on
Judge Newman's ability to access her chambers materials and issue opinions. I
clarified that Judge Newman has continued and continues to have full access to herchambers materials and the ability to transmit opinions to the Clerk's Office forissuance. I noted that I separately clarified this issue for Judge Newman by email
earlier today. The Clerk's Office remains available to provide the same technical2

assistance and support for Judge Newman that we currently provide to all of theother judges of the court.
Please let me know if I can clarify anything else. My direct dial and mobile number
are below as well if you need to reach me.

lerk's Office

I www.cafc.uscourts.gov

3

EXHIBIT

From:
Sent:
To:
Subject

Md--

16 2023 15:18

Ju ge ean's behavior

Thanks, - I'll let you know if she changes her mind.

rk's Officeor the Federal Circuit

I www.cafc.uscourt�h.9.Q!!

To:
Subject: Judge Newman's behavior

Hello-and I went up to Judge Newman at 2:35PM on 5/16/2023. I explained to Judge Newman
that I was here to help with locating some files.
She said the files for financial disclosm·es and travel documents were missing. I asked if I could
show her the location of the files; she refused.
stole all of her files. I have no JA. I want my PC and Phone back. No one
She said:
from my c am ers or myself will do the job of an JA. She then requested assistance from the
Clerk's Office.

-Thank you,1

AFFIDAVIT OF[Affidavit 5]. I have worked in the Information Technology Office
1. My name is(ITO) of the United States Court of Appeals for the Federal Circuit for 17 years.
My current title is Acting IT Director. Before that role, I worked as the court's
Helpdesk Manager. As the Helpdesk Manager, my responsibilities included
taking calls and answering emails asking for IT assistance and supervising thework of the more junior ITO helpdesk team members. The facts in this affidavit
come from my own personal observations to the best of my recollection.
2. In my time with the court, I have worked with Judge Newman on several occasions
in assisting with IT issues. When I first started, I was amazed that someone inher 80s, like Judge Newman was at the time, could pick things up so quickly andeasily. However, particularly over the last few years, I've noticed a significant
increase in Judge Newman forgetting how to perform basic tasks that used to beroutine for her. Judge Newman seems to contact the ITO helpdesk once or twicea week usually confused because she forgets how to remotely connect to the court's
network or because she forgets where she stored a file or an email.
3. Judge Newman routinely blamed her inability to find a file or email on someone"hacking" her computer. I would describe her on these calls as sounding paranoid.
However, when I would scan for malware and viruses, there would be nothing thatwould suggest any malicious interference with her computer, and I would usually
be able to find the file she was looking for on a desktop folder or other location
where she had forgot she saved it to. Rather than take responsibility for theerrors, she would blame hackers or the computer.
4. It now takes at least double the time to help Judge Newman with an IT issue thanit does an average court user because she often cannot recall routine steps orprocesses and we will need to walk her through the entire process and repeat thesame steps over and over again. These are things like remoting into the systemthat used to be no problem for Judge Newman until more recently.
5. Judge Newman was also unable to complete an annual security awarenesstraining two years ago. That training required a user to watch a short 10-20
minute video presentation and then answer a series of questions based on theinformation provided in the video. The test is multiple choice and asks the samequestions when a user retests. I believe Judge Newman tried and failed multiple
times to answer enough questions to pass the training, because she was unable toretain the information from the video she had just watched. I had to sit with her
and help feed her answers to the questions in order for her to pass the training. I
do not have any record of her taking it last year and she hasn't started this year.
16. The helpdesk members, and particularly the more junior members of our staff,
have also reported to me that Judge Newman is often harsh, forceful anddemanding in their interactions with her and often deflects blame from not being
able to do something to either the computer or "hackers."
I swear and affirm under penalty of perjury that the foregoing is true and correct.
Isl

Sworn to and subscribed before me this

,3tzi

ANNETTE 8.YOU
NOTARY PU�C DISTRICT OfNGCOLMy CommisslOll Expires NcM!mbef 14,UMBIA
2026

2

[Affidavit 6]

AFFIDAVIT OF. I have worked in the Clerk's Office of the United
My name isStates Court of Appeals for the Federal Circuit for seven years, and I have served as
Court Services Coordinator since March 2021. Before that, I served as Legal
Specialist and in other positions within the Clerk's Office. In these capacities, I have
served as a courtroom deputy, and in my most recent position I have been responsible
for coordinating courtroom and argument logistics. Among other tasks, I greet judges
and make certain they have everything that they need for argument. I haveinteracted with Judge Newman routinely on a monthly basis. The facts in thisaffidavit come from my own personal observations to the best of my recollection.
1. When the court decided to postpone in-person oral arguments due to the
COVIU-19 pandemic, I helped prepare Judge Newman and all other judges fortelephonic arguments. During this period, from March 2020 to August 2021, we
frequently experienced delays connecting Judge Newman to the telephonicarguments. Judges provided both primary and backup phone number, but there wereseveral instances when we were not able to reach Judge Newman at either number
she provided. In those instances, we contacted the Information Technology Office,and after their support staff reached out to Judge Newman we were only then able toconnect her for argument. These connection delays were significantly more common
for Judge Newman than other judges and would occasionally delay the argument
start time by several minutes, and in some cases more than ten minutes.
2. I also recall spending considerably more time preparing Judge Newman for thetransition to telephonic and video arguments than any of the other judges. Of thethree orientation sessions that I scheduled with Judge Newman and that I lead, each
took around 45 minutes to an hour. For comparison, sessions with other judges
averaged 15-20 minutes and were often conducted in a group of several judges. While
judges frequently had questions, Judge Newman's questions would often bepremature (i.e., questions that would have been answered in the normal course of theorientation) or occasionally repetitive. Many of the questions I would receive fromother judges in these settings centered on how these new procedures would impact
Judge Newman, and in at least two circumstances I scheduled orientations for otherjudges to assist specifically in preparing them for panels they served on with Judge
Newman.
3. In one orientation session I held with Judge Newman about nine twelve
months ago, which I expected would take no more than 15 to 20 minutes, the session
lasted around one hour. The bulk of the time was not spent on the technicalprocedures, but instead on an unrelated issue involving our system-generated final
calendar that I had not caught. I told Judge Newman that I would correct thecalendar and explained to her how the issue arose. She was suspicious and confused1and struggled to comprehend how the error occurred. She seemed distrustful of myanswers and repeatedly asked whether I needed to consult with others despite myassurances that I was aware of how the issue arose and that I would be the one
responsible for taking care of correction. In my view, this conversation did not require
more than five minutes, so I was surprised that it took at least 20 minutes before she
seemed satisfied that the issue would be resolved.
4. In my capacity as a courtroom deputy, the last few times I have witnessed
Judge Newman on the bench I have noticed that she does not ask as many questions
as in the past. She has also not appeared as attentive about presiding and keeping
advocates to their scheduled argument time as she was even just before the pandemic.
I am aware that Judge Newman uses a real-time transcription service so she canfollow what is said at oral argument, and I have wondered if this has contributed toher lack of active participation. Judge Newman has historically let lawyers go longer
than their allotted time, but the last few times I have served as deputy while shepresided Judge Newman did not seem to be cognizant of the time, and the lawyers
continued to speak until they self-stopped. She no longer consistently cut them off ormanaged the time. She seemed content to let them continue for as long as theywanted.
5. In my interactions with Judge Newman, the incident that concerned me themost occurred about 12-18 months ago when I witnessed her being escorted by a
Court Security Officer from the public elevator banks to the courtroom. I immediately
thought this was unusual because Judge Newman and other judges always arrive at
the antechambers to the courtrooms using the judges' elevators to avoid public
interaction, and I had seen other judges using those elevators that day. I walked tothe end of the hallway to greet Judge Newman. She seemed lost and confused, likeshe wasn't fully there. I walked with her down the hallway toward the courtroom
antechamber. After we walked the short distance from the elevators to theantechamber, she needed to sit for more than a minute until she could gather theenergy to stand so I could then escort her inside for robing.
I swear and affirm under penalty of perjury that the foregoing is true and correct.

Isl
Sworn to and subscribed before me thisq.fh

day of�• 202�

[Affidavit 7]

IO.Judge Newman stopped directing her attention to our conversation about thecomputer request when she got a call from another line. Because Judge Newman
was no longer talking with us, we decided to hang up the call.
11.At approximately noon the next day, April 18, 2023, Judge Newman called the
helpdesk and informed us that she had forgotten her security key to access her
computer. I worked withand he created a second security key so she
instructed me to instruct Judge Newman
was able to log into her computer.
that when she was done working for the day to call the helpdesk and we would
come to retrieve the key and lock it in a secure location.
12.At approximately 3:10pm that afternoon, I fielded a call from Judge Newman's-law clerk,, asking why Jud e Newman's chambers phone line
was being forwarded tothat we would investigate. I told
the issue.
13- and I together looked at the Cisco Call Manager, which showed that bothJudge Newman's direct line and her chambers line were not being forwarded.
with my phone on speaker so
14.I called
In a demandin tone,
her that the lines were not being forwarded tothatsaid that we needed to get this fixed. I believe I told
we would continue to investigate, and the call ended.
15.At that point,.and I called Judge Newman's personal line and• • k d • th phone. -and I concluded that it was likely Judge Newman and
Ill ust not have realized that, like all paralegals and judicial assistants,
has access to both Judge Newman's personal extension and thechambers line to answer calls on her behalf. We thought it was likely that­
had answered a call that Judge Newman �ecting and that there was some
confusion and miscommunication because-phone and workstation were notpresently located in her chambers. ITO had only been directed to move-IT
equipment and were never informed that he was no lo�member of chambers.
Given this limited information, we did not remove-access to either thechambers line or Judge Newman's personal extension.
16.I briefly left the office. When I returned,.told me that
had calledagain to let us know that she and Judge Newman had realized that the volume
was turned all the way down on Judge Newman's phone, which is why Judge
Newman was unaware that there were calls coming to her line.

2p

who asked whether we had been
17.At 3:28pm, I fielded a call fromconducting any testing on the phones and noted that he had received a few callsthat would ring once and then hang up. He mentioned that the calls had been
coming from Judge Newman's chambers and one call frompersonalcell phone. I told him that we were not doing any testing.
18-then decided that it would be best just to confirm that Judge Newman's
personal line was properly working. I overheard-talking wit�tolet him know what we were doing and heard_-;sk-not to pick up thephone when we called.
19-then proceeded to call Judge Newman's direct line. -again placed the callon speaker. After a few rings, Judge Newman picked up the phone. I heard.
explain to Judge Newman that we were calling just to confirm that her phone wasworking properly. After briefly disc�ituation regarding the phones,
Judge Newman started to talk about- She stated that-does notwant to sit in chambers anymore and that she was not taking i�. Judge
Newman went on to say that - asked the Chief to move him and she said
something along the lines of the Chief and her were in a big fight. Judge Newman
stated that she would have-removed from the court or arrested. She did not
explain the reason why she would want to do so but we assumed that it related tothe prior calls about Judge Newman's phone lines being forwarded to-. Judge
Newman then proceeded to say that she was going to make a bigfilss andmentioned the Supreme Court as well as the Washington Post. I understood her
to be talking about the ongoing investigation involving Judge Newman. She thendemanded that we needed to fix the phone system and ended the call. I would
describe the call as bizarre and unnecessarily hostile toward •.
20. Upon the end of the call, I returned to my office with
at 4:23pm thatdetailing the day's events, which I sent in an email to
day reporting these events. I've attached a copy of that email to this affidavit.
21.Judge Newman did not call to have ITO pick up the security key. The following
day-went to retrieve the key from chambers.

3

,,I swear and affirm under penalty of perjury that the foregoing is true and correct.

-f'½

Sworn to and subscribed before me this jO

4

[Affidavit 8]

I

Sworn to and subscribed before me thisf�

day of �, 2-0 23

District of Columbia.

Signed and sworn toby­
a/17,/;) 3��o�Offu IMfl ik
1 ·s:hzJor

nue ot Office

....,

J-

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My Commlsslo{l Expires:

2

Seal

[Affidavit 9]10. On April 18, 2023,
requested that all of Judge Newman's law clerks
attend an in-person meeting in chambers.
but before the11. After I learned that the meeting would concern
meeting started, I informed Judge Newman and the other clerks that I would liketo be loaned out to another chambers and suggested that I should not be present
at the meeting.
12.At that point, Judge Newman employed me to attend the meeting, communicatingthat my opinion was needed. I felt uncomfortable but attended the meeting
anyway.
13.At that meeting, Judge Newman said that she was not happy that
had asked the Chief to place him outside of chambers. Judge Newman asked her
law clerks if we could handle's responsibilities without him. We all
agreed that the clerks could handle those responsibilities.
14. At that point in the meeting, I informed Judge Newman that working in hel'chambers was hurting my ability to complete my work, taking a toll on my mental
health, and harming my relationships at the court. I then reiterated that I would
like to be loaned out to another judge. In response, Judge Newman indicated shewould not let me work for another judge because the optics wouldn't look good forher given the current investigation. Judge Newman then told me that my options
were to stay or resign.
15.At that point in the meeting,interjected on my behalf in support of
my request to be loaned out to another chambers and possibly even another court,
but Judge Newman was not receptive to the idea.
16. I informed Judge Newman that I only had two pending cases assigned to me. She
responded that I could assist her with research projects, but I told her that I took
the position to be a law clerk and not a research assistant. I also reiterated that
I would still feel uncomfortable given my prnximity and potential exposure tomatters concerning the investigation.
17. The next day, April 19, 2023, I brought my concerns to the Chief and indicatedthat I could no longer work in this environment and requested to be moved toanother chambers.
I swear and affirm under penalty of perjury that the foregoing is true and correct.
2

_Isl

Sworn to and subscribed before me this

/ CJ

3

[Affidavit 10]

shared that concern with Chief Judge Moore. I asked if it was possible to claw
back the email in an effort to mitigate the breach and limit the number ofindividuals who saw the confidential information about the informal EDR matter.
I understand that the Chief and ITO were able to do that, though I do not know
how many judges or chambers staff viewed the email before it was clawed back. I
subsequently saw the email exchange in question.
4. On April 10, 2023, with no resolution to -concerns in place, I was asked tojoin Chief Judge Moore in her chambers to call-in an attempt to
informally resolve the matter.
asked �ted permission torecord our phone call. Chief Judge Moore explained the narrow reason for the call
was to address the concerns about the after-hours phone calls and asked­- if she was willing to refrain from making them in order to resolve thisdid not agree to that, saying she would need to think about
matter.
it, and could not give a time frame to provide a response. Chief Judge Moore thenasked
if she was willing to refrain from making after-hours calls to- just for that day, andagain did not agree, repeating that she
would have to think about it. Since that call, I have not received any response toher
the request to refrain from after-hours phone calls fromsupervisor Judge Newman, no1· am I aware of any response fromor
Judge Newman to others or any agreement concerning the same.
5. On April 13, 2023, with no resolution to-concerns in place,.submitted
to me a Request for Assisted Resolution under EDR Plan§ IV.C.2. He submitted
an Appendix to his Request the next day. The Request and Appendix allege
various wrongful conduct about conduct in chambers under Judge Newman's
supervision. Pursuant to EDR Plan§ IV.C.2.b, I immediately shared the Request
with Chief Judge Moore.
6. On April 14, 2023, Chief Judge Moore copied me on an email to Judge Newman,
which provided notice to Judge Newman about the Request for Assisted
Resolution, as well as Chief Judge Moore's decision to grant
request forpginterim relief, ursuant to EDR Plan § IV.B.4, by movinworkstation
outside of chambers.
7. On April 18, 2023 , I emailed Judge Newman about the Request for Assisted
Resolution, offering to facilitate a discussion to address and hopefully resolve theconcerns. As of the date of this affidavit, I have not received any response to my
Information will be shared only to the extent necessary and only with those whose
involvement is necessary to address the situation." Plan§ IV.B.l.
2

email or the Request for Assisted Resolution, nor am I aware of any response to
the Request or associated communications.
8. In the morning of April 19, 2023, -came to my office immediately after a phone
call he had with Judge Newman. He relayed to me that Judge Newman told himthat unless he moves his workstation back to chambers by 11am, she would accept
his resignation.
9. I immediately asked for and received a meeting with Chief Judge Moore and­
Judge Prost and Judge Taranto were also in attendance during our meeting. was visibly emotional when we walked into the Chiefs chambers and needed amoment to gather his thoughts. The Chief told- at that meeting that she
would grant his request to continue his employment at the court and she would
make other work available to him. The Chief later forwarded to me an email she
sent to Judge Newman explaining that- is "no longer an employee of theNewman chambers."
10.In several meetings I had with - over the course of many weeks, discussed the toll that this entire experience was taking on his physical andmental well-being, including seeking help from medical professionals.
11. The Request for Assisted Resolution remains pending as of the date of thisaffidavit.
I swear and affirm under penalty of perjury that the foregoing is true and con·ect.

Sworn to and subscribed before me thisI g.,--

day of J,iVtt,�23

[Affidavit 11]was walking back and forth mumbling about how her computer and phone had
been taken away from her when that was not the case.
6. I asked Judge Newman if she wanted me to help a law clerk access the files sothat she could file her financial disclosure report. She said no and indicated thatto do it for her.
she wanted someone in the Clerk's Office or
7. At that point, I got worried that Judge Newman was getting so angry that she
might collapse or have a heart attack if the conversation continued. I told Judge
Newman that we would get back to her and told-that we should go.
8. I was left shaken and upset from this experience. I always had a good relationshipwith Judge Newman and was just trying to help her locate the files that I believe
are on her network shared drive and do not believe were taken by
I swear and affirm under penalty of perjury that the foregoing is true and correct.

Sworn to and subscribed before me this
S,t)/
1 L

wa ns-fo(} 0

Jf-M day of

ANNETTE 8. YOUNGNOTARY PUBLIC DISTRICT OF COLUM81A
My Conm1ss1on Expire, Nowlmber 14, 2026

2

United States Court of Appeals for t he Federal Circuit
In re Complaint No. FC-23-90015***

DECLARATION [Affidavit 12]I,declare from my personal know ledge that the following

is true.
1. From the period of Decembe1· 26, 2016, through the date of this declaration, I
have served as the appointed chief deputy clerk for the U.S. Court of Appeals
for the Federal Circuit.
2. As the senior deputy clerk, the circuit clerk has designated me as his primarycustodian of the court's records and papers pursuant to Federal Rule ofAppellate Procedure 45(d), which includes the data and information stored
within the court's electronic filing system (CM/ECF).
3. Data from the CM/ECF can be retrieved in several ways for purposes of
performing data analysis, including thl'Ough formatted reports and throughraw data extractions.
4. The Cl�rk's Office uses Microsoft SQL Server Reporting Services {SSRS) to
prepare regular internal reports, including monthly reports fo1· Federal
Circuit judges including information about the status of their cases andoverall internal statistical information.
5. The Clerk's Office also uses DbVisualizer to retrieve the raw data from
CM/ECF that supports the formatted data on the SSRS reports.
Page 1 of 9

6. On March 24, 2023, the Chief Judge provided me with an excerpt of thecomplaint in this case which contained certain statistical information
concerning judge pa1·ticipation and assignments. I was asked to review the
court's records as to the statistical information in the complaint and toprovide an independent review to the special committee.
7. Because I do not have access to the underlying raw data in CM/ECF, - Quality Management Supervisor and CM/ECF Administrator,
assisted me in compiling and reviewing the reports and data. For any data
retrieval I could not accomplish on my own, I personally observed
perform the data retrieval and confirmed the search parameters with him at
the time.

Judge Newman's Case Participation from June 1, 2022, through March
24,2023
8. From June 1, 2022, through March 24, 2023, Judge Newman participated in
60 me1·its cases. This information was retrieved from the Case Participations
report from SSRS (Exhibit A). The underlying cases supporting thiscalculation were retrieved from Db Visualizer using function
cafc_rpt_judges_case_participations with date parameters June 1, 2022

through March 24, 2023; the results were filtered to show only Judge
Newman's case participations "PN" and for argued cases only. The
information from DbVisualizer was copied into Excel to be in a 1·eadable
format (Exhibit B).
Page 2 of 9

9. From June 1, 2022, through March 24, 2023, the remaining active judges
participated in an average of 103 cases, with a standard deviation of 13. 72.
(Exhibit A). Judge Newman's participation in 60 cases was 3.14 standard
deviations from the remaining active judge participation mean.lJudge Newman's Opinion Authorship from October 1, 2020, throughSeptember 30, 2021
10. From October 1, 2020, through September 30, 2021, Judge Newman authored9 majority opinions. The next closest judge authored 33 majority opinions.
This information was retrieved from the Judges' Assigned Opinion Workload
report from SSRS (Exhibit C). The underlying cases supporting thiscalculation were 1·etrieved from DbVisualizer using function
cafc_rpt_judges_assigned_opinion_workload with date parameters October 1,
2020, through September 30, 2021; the results were filtered to show only
Judge Newman's authorships "Newman" and excluded non-merits cases
including miscellaneous cases, cases then-still pending (disp_date = null),and Rule 36 dispositions (aopntype = 7).
11. The information from DbVisualizer was copied into Excel to be in a readable
format and with duplicate cases removed. 2 From this data, I calculated thetime between the authorship assignment of the case and the opinion issuance

1 The deviations from the mean calculation is the Z score value, or (Judge Newman's result.

Remaining Judge Mean)/Standard Deviation.

Duplicate cases will appear on this data extract whenever multiple opinions are issued in a case,such as if the panel i ssues a second opinion as part of a petition for rehearing.

2

Page 3 of 9data using the Days(X, Y) formula and the averaged the results. During thisperiod, Judge Newman's average time from authorship assignment to opinion
issuance was 249.11 days (Exhibit D).
12. From October 1, 2020, through September 30, 2021, the remaining judges
who were in active service during this entire pe1·iod authored an average of
42 majority opinions. This information was retrieved and calculated from theJudges' Assigned Opinion Workload report from SSRS (Exhibit C). The
underlying cases supporting this calculation were retrieved from
DbVisualizer using function cafc_rpt_judges_assigned_opinion_workload withdate parameters October 1, 2020, through September 30, 2021; the results
were filtered to show only active judge authorships 3 and excluded non-merits
cases including miscellaneous cases, cases then-still pending (disp_date =null), and Rule 36 dispositions (aopntype = 7).
13. The information from DbVisualizer was copied into Excel to be in a readable
format and with duplicate cases removed. From this data, I calculated thetime between the authorship assignment of the case and the opinion issuancedata using the Days(X, Y) formula and the averaged the results. 4 During this3

Excluding Judge Newman, only the following judges were in active status and were assigned tomerits panels during this entire period: Chief Judge Moore, Judge Lourie, Judge Dyk, Judge Prost,
Judge Reyna, Judge Taranto, Judge Chen, Judge Hughes, and Judge Stoll.
4

Days where the case was stayed between autho1·ship and opinion issuance were excluded from thecalculation.

Page 4 of 9

period, the remaining active judge average time from authorship assignment
to opinion issuance was 60.61 days, with a standard deviation of 74.22(Exhibit E). Judge Newman's average time from authorship assignment toopinion issuance of 249.11 days was 2.54 standard deviations from theremaining active judge participation mean.

Judge Newman's Opinion Authorship from October 1, 2021, throughMarch 24, 2023
14. From October 1, 2021, through March 24, 2023, Judge Newman authored 10
majority opinions. This information was retrieved from the Judges' Assigned
Opinion Workload report from SSRS (Exhibit F). The underlying cases
supporting this calculation were retrieved from DbVisualizer using function
cafc_rpt_judges_assigned_opinion_workload with date parameters October 1,

2021, through March 24, 2023; the 1·esults were filtered to show only Judge
Newman's authorships "Newman" and excluded non-merits cases including
miscellaneous cases, cases then-still pending (disp_date = null), and Rule 36
dispositions (aopntype = 7).

15. The information from DbVisualizer was copied into Excel to be in a readable
format and with duplicate cases removed. From this data, I calculated thetime between the authorship assignment of the case and the opinion issuancedata using the Days(X, Y) formula and the averaged the results. During thisperiod, Judge Newman's average time from authorship assignment to opinion
issuance was 198.75 days (Exhibit G).
Page 5 of 9

16. From October 1 1 2021, through March 24, 2023, the remaining judges who
were in active service during this entire period authored an average of 58.33
majority opinions. This information was retrieved and calculated from theJudges' Assigned Opinion Workload report from SSRS (Exhibit F). The
underlying cases supporting this calculation were retrieved from
DbVisualizer using function cafc_rpt.Judges_assigned_opinion_workload withdate parameters October 1, 2021, through March 24, 2023; the results were
filtered to show only active judge authorships5 and excluded non-merits cases
including miscellaneous cases, cases then-still pending (disp_date = null),and Rule 36 dispositions (aopntype = 7).
17.The information from DbVisualizer was copied into Excel to be in a readable
format and with duplicate cases removed. From this data, I calculated thetime between the authorship assignment of the case and the opinion issuancedata using the Days(X, Y) formula and the averaged the results.G During thisperiod, the remaining active judge average time from authorship assignment
to opinion issuance was 53.17 days (Exhibit H) 1 with a standard deviation of

5 Excluding Judge Newman, only the following judges were in active status and were assigned tomerits panels during entu·e period: Chief' Judge Moore, Judge Lourie, Judge Dyk, Judge Prost, Judge
Reyna, Judge Taranto, Judge Chen, Judge Hughes, and Judge Stoll. Although Judge Cunningham
was serving as of September 1, 2021, she was not assigned to a panel until November 2022.
G Days where the case was stayed bet.ween authorship and opinion issuance were excluded from thecalculation.

Page 6 of 9

53.18. Judge Newman's average time from authorship assignment to opinion
issuance of 198.75 days was 2.46 standard deviations from the remaining
active judge participation mean.

Judge Newman Cases Under Submission
18. I reviewed the circulated September 2022 Cases Under Submission -Agedreport, which reports the number of dates a case has been waiting for opinion
following assignment. At the time, Judge Newman had only three opinion
authorships pending, all over which wet·e pending for more than 200 days
(Exhibit I). 7

Reassignment of Opinion Authorship from Judge Newman
19. In reviewing the recent history of reassignment of opinion authorship from
Judge Newman, I personally retrieved and reviewed the docket sheets from
CM/ECF. These docket sheets contain the non-public internal Clerk's Officeentry information, including opinion authorship assignments and changes.
20.Judge Newman assigned herself■

an unrepresented

submitted case, on Novemberl 2020. The case was reassigned to Judge-on July2022, after it had been pending an opinion fol' 624 days.

7 To avoid disclosing potential per cur:iam opinion authorships, I redacted the names of all authoring

judges except for Judge Newman's authorship cases. Additionally, the remaining reports included in
the original packet are omitted.

Page 7 of 9

After reassignment to Judge-the opinion issued on August

■

2022

(Exhibit J}.

■ 2020. The case was reassigned to Judge-on May■

21.Judge Newman assigned herself
case, on May

an argued

2021, after it had been pending an opinion for 380 days. After reassignment
to Judge Ill, the opinion issued on September■ 2021 (Exhibit K}.
22.Judge Newman assigned herself, an unrepresented

submitted case, on February.2022. The case was reassigned to Judge-on February■

2023, after it had been pending an opinion for 374 days.

After reassignment to Judge_, the opinion was issued on Febi·uary2023 (Exhibit L).
23. Judge Newman assigned herself

an unrepresented

submitted case, on May-2020. The case was reassigned to Judge­
on March-2021, after it had been pending an opinion for 302 days. Afterreassignment to Judge- the opinion issued on March

■

2021

(Exhibit M).
24. Judge Newman assigned hersel
argued case, on January
on October■

2022. The case was 1·eassigned to Judge■ 2022, after it had been pending an opinion for 269

days. After reassignment to Judge
December. 2022 (Exhibit N).

Page 8 of 9

, the opinion issued on

25.Judge Newman assigned herself

an unrepresented submitted■ 2022. The case was reassigned to Judge- on

case, on September

January.2023, after it had been pending an opinion for 126 days. Afterreassignment to Judge_, the opinion issued on March-2023 (Exhibit
0).
Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury under the laws of
the United States of American that the foregoing is trust and correct.
Executed on April 6, 2023, in Washington, D.C.

Chief Deputy er
U.S. Court of Appeals for the Federal Circuit

Page 9 of 9

Exhibits A, B, C, D, E, F, G, H, I, J, K, L, M, N, and O
have been redacted in their entirety for confidentiality purposes.

United States Court of Appeals for the Federal Circuit
In re Complaint No. FC-23-90015***

AFFIDAVIT [Affidavit 13]
do hereby swear under oath that the following is true toI,the best of my know ledge.
1.

From the period of December 26, 2016, through May 30, 2023, I served as
the appointed chief deputy clerk for the U.S. Court of Appeals for theFederal Circuit. On May 31, 2023, I was designated as acting clerk ofcourt for the U.S. Court of Appeals.

2.

As then senior deputy clerk at all times relevant to this affidavit, thecircuit clerk has designated me as his primary custodian of the court's
records and papers pursuant to Federal Rule of Appellate Procedure 45(d),which includes the data and information stored within the court's
electronic filing system (CM/ECF).

3.

Data from CM/ECF can be retrieved in several ways for purposes of
performing data analysis, including th.i·ough formatted reports andthrough raw data extraction.

4.

The Clerk's Office uses Microsoft SQL Server Reporting Services (SSRS)
to prepare regular internal reports, including monthly reports for Federal
Cfrcuit judges including information about the status of thefr cases andoverall internal statistical information.
Page 1 of 7

5.

The Clerk's Office also uses DbVisualizer to retrieve the raw data from
CM/ECF that supports the formatted data on the SSRS reports.

6.

The results of such internal data retrieval and statistical information is
uniquely available to the Clerk's Office and the Federal Circuit judges.
Aspects of this data are included in public reports we make available on
the court's website, as well as in response to public information requests
received by the court. However, any publicly released or available datanecessary excludes much judge-specific information and, as such, isneither a complete nor fully accurate representation of the work of thecourt.

7.

For example, when either a panel or the court designates an opinion as"per curiam," the Clerk's Office does not publicly disclose the authorshipof the opinion on its website. Internally, though, the Clerk's Office counts
and reports the authorship of per curiam opinions in its monthly reports
provided to the Federal Circuit judges. As a result, a member of the
public seeking to calculate authorship totals based on information fromour website will report an undercounting of the opinions authored by any
particular judge or judges.

8.

Concerning the calculation of authorship time, a member of the public canretrieve the public docket of any case through the judiciary's PACER
website. This public docket will provide the opening date of the case andthe judgment and opinion issuance date of the case, which someone canPage 2 of 7

use to determine the amount of time it took for a case to be decided.
However, the public docket does not fully disclose information that may
unavoidably increase the time it takes for a case to be decided, thus
inaccurately inflating calculations for how long a judge takes to issue an
opm1on.
9.

Instead, the internal Clerk's Office-produced reports provide the mostaccurate accounting of the time for an authoring judge to issue an opinion.
The Clerk's Office calculations exclude case stays, cases where rebriefing
or supplemental briefing occurs, and cases where authorship changes
during the deliberative and authoring period. Therefore, the Clerk's
Office numbers, which are calculated directly from the raw data, provide amore accurate calculation of opinion issuance time.

10.

Additionally, any calculation of opinion issuance time must only run fromwhen the case authorship is assigned and exclude all prior periods of thecase. Before authorship is assigned in CM/ECF and the case is submitted
to the panel for a decision, the authoring judge has neither responsibility
for writing the decision nor control over the progression of the case.

Case Statistical Information
11.

The following memorializes statistical data and information previously
provided to the Special Committee during the course of theirinvestigation.

Page 3 of 7

12.

Because I do not have access to the underlying raw data in CM/ECF,
Quality Management Supervisor and CM/ECF
Administrator, assisted me in performing the following data retrieval andcalculations. For any data retrieval I could not accomplish on my own, I
personally observed

perform the data retrieval and confirmed

the search parameters and results with him at the time.
13.

I reaf:ffrm under penalty of perjury the contents ofmy April 6, 2023
declaration with the following correction, including the methods used to
extract the raw data from CM/ECF through Db Visualizer: Paragraph 17
should reflect that Judge Newman's average time from authorshipassignment to opinion issuance of 198. 75 days was 2. 73 not 2.46 standard
deviations from the remaining active judge participation mean.

14.

From October 1, 2020, through September 30, 2021, Judge Newman
authored 9 majority opinions. If her concurrences and dissents areincluded, she authored 25 opinions. This information was retrieved fromthe Terminations Report from SSRS (Exhibit A) and filtered to include
precedential and nonprecedential opinions issued during the period.
Information Column 14 includes information about which, if any, judge
wrote an opinion separate from the majority. Judge Newman's code is
"PN."

15.

From October 1, 2020, through September 30, 2021, the remaining judges
who were in active service during this entfre period authored an average

Page 4 of 7

of 42 majority opinions. If additional opinions, such as concurrences anddissents, are included, the average for this period is 44.
16.

From October 1, 2020, through September 30, 2021, the next closest judge
to Judge Newman had an average time of 143.2 days from assignment toissuance. This judge authored 40 majority opinions and an additional four
items, for a total of 44 authorships.

17.

From October 1, 2021, through March 24, 2023, Judge Newman authored10 majority opinions. If her concurrences and dissents are included, sheauthored 28 opinions. This information was retrieved from theTerminations Report from SSRS (Exhibit B) and filtered to include only
cases where Judge Newman authored a separate opinion from the court's
opinion. Information Column 14 includes information about which, if any,
judge wrote an opinion separate from the majority. Judge Newman's codeis "PN."

18.

From October 1, 2021, through March 24, 2023, the remaining judges who
were in active service during this entire period authored an average of 58
majority opinions. If additional opinions, such as concurrences anddissents, are included, the average for this period is 61.

19.

From October 1, 2021, through March 24, 2023, the next closest judge toJudge Newman had an average time of 106 days from assignment toissuance. This judge authored 42 majority opinions and an additional 12
items, for a total of 55 authorships.

Page 5 of 7

20.

From October 1, 2021, through March 24, 2023, 616 majority opinions
were issued, with 195 (or 31.6%) of the opinions issued per curiam. Only
one of the per curiam opinions was authored by Judge Newman. This
information was retrieved from DbVisualizer using function
cafc rpt_judges assigned opinion workload with date parameters

October 1, 2020, through March 24, 2023; the results were filtered to show
only Judge Newman's authorships "Newman" and excluded non-merits
cases including miscellaneous cases, cases then-still pending (disp date =null), and Rule 36 dispositions (aopntype = 7). Cases with aopntype = 4 or
5 are designated as per curiam. The information from DbVisualizer wascopied into Excel to be in a readable format (Exhibit A). The informationfrom DbVisualizer for all curiam opinions with authoring judges redacted
was copied into Excel to be in a readable format (Exhibit B).
21.

From May 1, 2022, through April 30, 2023, Judge Newman participated in
65 cases. This information was retrieved from the Case Participations
report from SSRS (Exhibit E). The underlying cases supporting thiscalculation were rntrieved from DbVisualizer using function
cafc rpt_judges case_participations with date parameters May 1, 2022

through April 30, 2023; the results were filtered to show only Judge
Newman's case participations "PN'' and for argued cases only. The
information from DbVisualizer was copied into Excel to be in a readable
format (Exhibit D).

Page 6 of 7

22.

From May 1, 2022, through April 30, 2023, the average participation forthe other active judges who sat for that same period was 129.1 cases(Exhibit A). 1 Judge Newman's participation was 3.2 deviations from theremaining active judge participation mean.

Case Assignment Information
23.

Judge Newman last served on a motions panel in January 2021.

I declare and affirm under penalty of perjury that the foregoing is true andcorrecL Lo the best of my knowledge.
DATED thisJ/s/' day of /lo/J,{)1.,,'J,

Sworn to and subscribed before me this -�-1-day of
�....
f
$r

t..AAV�t-:z.. .
.. "0.,
L.. '- .J

Notary Public,.

I Because Judge Stark joined tho court during this period, his participation numbers aro excluded
from the active judge data.

Page 7 of?

Exhibits A, B, C, D, E, and F
have been redacted in their entirety for confidentiality purposes.