1225 19th Street NW Suite 450, Washington DC 20036 (202) 869-5210 www.NCLAlegal.org 

April 21, 2023 

The Honorable Kimberly A. Moore 

Chief Circuit Judge 

U.S. Court of Appeals for the Federal Circuit 

717 Madison Place, N.W. 

Washington, DC 20439 

HAND DELIVERED 

Re: Complaint Against Circuit Judge Pauline Newman

Dear Chief Circuit Judge Moore: 

 

The New Civil Liberties Alliance (“NCLA”) is a nonpartisan, nonprofit civil rights 

organization dedicated to defending constitutional rights from unlawful administrative power. 

NCLA’s CEO is Philip Hamburger, the Maurice & Hilda Friedman Professor of Law at Columbia 

Law School. NCLA’s Board of Advisors includes both retired federal appellate and trial judges, law 

school professors, former senior federal department and agency executives, prominent law firm 

partners, corporate counsel, and policy experts in the fields of constitutional and administrative law. 

It has come to NCLA’s attention that you, in your capacity as the Chief Judge of the Federal 

Circuit, have “identified a complaint” against Circuit Judge Pauline Newman. See 28 U.S.C. ß 351(b); 

see also R. Jud. Conduct & Disability Proceedings 5. Circuit Judge Newman has engaged NCLA to 

represent her interests in the above-referenced investigation. 

We understand that either you, in your capacity as Chief Judge, or the “special committee” 

ordered that no new cases be assigned to Circuit Judge Newman pending conclusion of the “special 

committee” investigation. Your order of March 24, 2023 is ambiguous as to whether Circuit Judge 

Newman was afforded even an opportunity formally to respond to the “identified complaint” prior 

to your selection of the “special committee” as required by Rule 11(f) of the Rules for Judicial Conduct 

and Judicial Disability Proceedings. The order also contains basic errors of fact. For example, contrary 

to the order’s page-one allegation that Circuit Judge Newman’s Summer 2021 “sittings were reduced 

compared to her colleagues,” Circuit Judge Newman served on ten different panels of the Court—

more than any other judge but two. 
2 | N C L A 

Furthermore, your order of April 13, 2023 alleges that Circuit Judge Newman has failed to 

cooperate in these proceedings. The basis for this allegation appears to be Circuit Judge Newman’s 

failure to respond within three days to a prior order that directed her to submit to a medical examination 

by an expert of the “special committee’s” choosing. Leaving aside significant legal questions that such 

an order raises, three days is not sufficient time to obtain counsel and receive legal advice in responding 

to this order—protections to which Circuit Judge Newman is entitled under the governing statute and 

the rules. See 28 U.S.C. ß 358(b)(1); see also Jud. Conduct & Disability Proceedings 15(f). By way of 

comparison, the Federal Rules of Civil Procedure afford a defendant 21 days to answer the complaint, 

whereas the Federal Rules of Appellate Procedure set the response deadline at 30 days. See Fed. R. 

Civ. P. 12(a)(1)(A)(i); Fed. R. App. P. 31(a). Surely, a federal judge responding to a complaint should 

be afforded no less due process. Your order of April 17, 2023, directing that Circuit Judge Newman 

respond to a request to “provide hospital records, medical, psychiatric or psychological, and other 

health-professional records” by April 21, 2023 (i.e., within four days) sets similarly unreasonable 

deadlines. While we certainly appreciate the efforts to resolve this matter expeditiously, the deadlines 

established by these two orders do not provide sufficient opportunity to answer the requests, obtain 

and consult with counsel, or engage in negotiation as to the scope of the requests as provided by the 

Commentary to Rule 13 of the Rules for Judicial Conduct and Judicial Disability Proceedings. 

Now that Circuit Judge Newman has obtained representation, she can properly respond to the 

requests that she undergo medical examination, provide medical records, and “sit down with the 

Committee for a video-taped interview.” However, in light of our request (explained in more detail 

below) to transfer the matter to a judicial council of another circuit, we believe that such a response 

would be premature. Nevertheless, we wish to make clear that Circuit Judge Newman did not, has 

not, and will not fail to cooperate with any investigation that is conducted consistent with the limits 

that the Constitution, the Judicial Disability Act of 1980, and the Rules for Judicial Conduct and

Judicial Disability Proceedings place on such investigations. Accordingly, we will reply to your orders 

of April 7, 2023 and April 17, 2023 once the transfer request is resolved. 

We also note that the decision to preclude Circuit Judge Newman from being assigned new 

cases prior to the adjudication of your “identified complaint” fails to state any legal authority or basis 

for such an action. Instead, on April 5, 2023, you sent an email to Circuit Judge Newman (copying all 

other members of the Court) stating that she “will not be assigned any new cases until these 

proceedings are resolved.” Absent impeachment proceedings, resignation, or imposition of sanctions 

under the Judicial Disability Act, there are no legal bases to deny the functions of an Article III judicial 

office to an individual who has been duly appointed to hold such an office “during good behaviour.” 

U.S. Const. art. III, ß 1. 

Indirect interference with Circuit Judge Newman’s judicial functions such as withdrawing her 

support staff or equipment is equally problematic, especially if one of the bases for proceeding against 

her is delay in the disposition of cases. We understand that Circuit Judge Newman has been deprived 

of her secretarial assistance, one of her clerks, and had her ability to use the Court’s communication 

systems restricted. She cannot be expected to complete her duties in a timely fashion if, unlike the 

other judges on the Court, she lacks the necessary access to communications and administrative and 

research support. 
3 | N C L A 

Of even more pressing concern, however, is the ability of the “special committee” or any

Federal Circuit Judicial Council to investigate or render any determination, without creating the 

appearance of prejudice—if not actual prejudice. 

As you are aware, the Rules for Judicial Conduct and Judicial Disability Proceedings authorize 

a “special committee” to conduct an evidentiary hearing, and the rules afford the subject judge the 

ability to compel the testimony of witnesses. See R. Jud. Conduct & Disability Proceedings 14(b), 

15(c). In this case, such witnesses likely would include not only members of the “special committee,” 

but also current and former members of the Circuit (who could and would testify regarding the 

allegations in your “identified complaint” against Circuit Judge Newman). It is evident that members 

of the “special committee” and of any Federal Circuit Judicial Council could not serve as adjudicators 

of the complaint against Circuit Judge Newman while also serving as fact witnesses in the proceeding. 

Moreover, because other witnesses also may include members of the bar who practice 

exclusively before the Federal Circuit, members of the Office of White House Counsel, former law 

clerks, and others who may have an interest in the “special committee” investigation and 

recommendation, the investigation can fairly be described as “highly visible and [one where] a local

disposition may weaken public confidence in the process.” Commentary on R. Jud. Conduct & 

Disability Proceedings 26. This concern is supported by leading judicial ethics experts. See Riddhi 

Setty and Michael Shapiro, Federal Circuit Chief Moore Takes Action to Unseat Judge Newman, Bloomberg 

News (April 13, 2023) (“‘The fact that you have a chief judge initiating a complaint against a long-time 

colleague would suggest this ought to be handled by the chief judge and circuit council’ of another 

federal appeals court.”) (quoting Professor Arthur Hellman).

Of course, a proceeding of this sort by any judicial council would raise a host of constitutional 

questions, but at the very least this complaint needs to be transferred. Indeed, transferring a complaint 

about a Circuit Judge appears to be standard practice within regional circuits. See, e.g., In re Charges of 

Judicial Misconduct, No. 21-90142-JM (resolution of the complaint against Circuit Judge William Pryor 

of the U.S. Court of Appeals for the Eleventh Circuit by the Judicial Council of the Second Circuit); 

In re Charges of Judicial Misconduct, No. DC-13-90021 (resolution of the complaint against Circuit Judge 

Edith Jones of the U.S. Court of Appeals for the Fifth Circuit by the Judicial Council of the District 

of Columbia Circuit); In re Charges of Judicial Misconduct, No. 12-90069-JM (resolution of the complaint 

against Circuit Judge Boyce F. Martin of the U.S. Court of Appeals for the Sixth Circuit by the Judicial 

Council of the Second Circuit). The practice of other courts over the years strongly suggests that a 

request for transfer is not only appropriate, but necessary. 

For these reasons, NCLA respectfully requests that you or the “special committee” (acting 

pursuant to Rule 26 of the Rules of Judicial Conduct and Judicial Disability Proceedings, and in the 

interests of justice and public confidence in the judicial system) request that the Chief Justice of the 

United States transfer this investigation to the judicial council of another circuit. We additionally 

request that consistent with the Constitution, the Judicial Disability Act of 1980, and the Rules for 

Judicial Conduct and Judicial Disability Proceedings, you immediately restore Circuit Judge Newman 

to the regular rotation on the Court’s calendar and that you cease interfering with Circuit Judge 

Newman’s operation of her own chambers and immediately restore her full access to the Court’s 

communication systems and her complement of administrative and legal support staff so as to permit 
4 | N C L A 

her to discharge her judicial duties in the same manner as other judges on the United States Court of 

Appeals for the Federal Circuit and throughout the federal judiciary. 

Sincerely, 

/s/ Mark Chenoweth

 President and General Counsel, NCLA 

cc: The Honorable John G. Roberts, Jr. 

 The Chief Justice of the United States 

The Honorable Robert M. Dow, Jr. 

 Counselor to the Chief Justice of the United States 

*** 

The Honorable Sharon Prost 

 Circuit Judge, United States Court of Appeals for the Federal Circuit 

 

The Honorable Richard G. Taranto 

 Circuit Judge, United States Court of Appeals for the Federal Circuit