United States Court of Appeals 

for the Federal Circuit

UNDER SEAL (NON-PUBLIC ORDER)

__________________________ 

IN RE COMPLAINT NO. 23-90015

__________________________ 

Before MOORE, Chief Judge, PROST and TARANTO, Circuit 

Judges.

PER CURIAM. 

ORDER 

By order of March 24, 2023, a special committee composed of Chief Judge Moore, Judge Prost, and Judge Taranto (the Committee) was appointed to investigate and 

report its findings and recommendations with respect to a 

complaint identified against Judge Newman raising, inter 

alia, a concern that she may have a mental or physical disability that renders her unable to discharge the duties of 

her office. 

 The Committee issues this Order to remind the participants in this proceeding—including Judge Newman and 

her counsel—of the confidentiality obligations imposed 

both by the terms of the Judicial Conduct and Disability 

Act of 1980 (the Act) and by the Rules for Judicial-Conduct 

and Judicial-Disability Proceedings (the Rules). 

The Act states in unambiguous terms that, with certain exceptions not applicable here, “all papers, documents, 

and records of proceedings related to investigations conducted under this chapter shall be confidential and shall 

not be disclosed by any person.” 28 U.S.C. § 360(a)
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(emphasis added). This extends to filings made by Judge 

Newman or her counsel as well as orders of the Committee. 

Indeed, the Act draws a critical distinction between the investigative stages of a proceeding and decisions ultimately 

issued by the Judicial Council or the Judicial Conference, 

which must be made public. See id. § 360(b). 

The Rules reflect the same requirement of confidentiality. Rule 23(b) unambiguously states that “[t]he consideration of a complaint by a chief judge, a special committee, 

a judicial council or the Committee on Judicial Conduct 

and Disability is confidential” and that “[i]nformation 

about this consideration must not be publicly disclosed by 

any judge or judicial employee.” Rule 23(b)(1). That is why 

the Committee’s prior orders in this matter were prominently marked “UNDER SEAL (NON-PUBLIC ORDER).” 

These confidentiality requirements do not exist solely 

to protect the judge subject to a complaint. Instead, Rule 

23 makes it express that “[c]onfidentiality under these 

Rules is intended to protect the fairness and thoroughness 

of the process by which a complaint is filed or initiated, investigated . . ., and ultimately resolved.” Rule 23(a). In 

particular, confidentiality protections exist, among other 

reasons, to protect the identity of witnesses and to ensure 

that a thorough investigation may be conducted without 

potential witnesses being intimidated by efforts to try the 

matter in the press while an inquiry is still underway. Accordingly, the commentary to the Rules makes clear that

the confidentiality obligation “includes subject judges.” 

Commentary on Rule 23.

Similarly, in keeping with the broader goals served by 

the confidentiality requirements, the Rules do not permit a 

subject judge any unilateral right to disclose aspects of an 

investigation under the Rules. Instead, Rule 23(b)(9) permits a subject judge solely to acknowledge publicly that he 

or she is the judge referred to in documents made public 
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under Rule 24 after a final decision in a matter has been 

entered. And Rule 23(b)(7) permits disclosure of information where both the subject judge and the chief judge 

consent in writing. The chief judge is not required to consent to any such disclosure and must ensure, as appropriate, that the identity of witnesses is protected and that the 

integrity of an ongoing investigative process is not otherwise compromised by piecemeal releases of information in 

the midst of the investigation.

The Committee intends that this reminder of confidentiality obligations will ensure that this investigation may 

proceed expeditiously and confidentially as provided under

both the Act and the Rules. 

Earlier in this proceeding there have been lapses in adherence to the confidentiality provisions in Act and the 

Rules. On April 21, 2023, counsel for Judge Newman publicly released a letter that was itself a filing in this proceeding (and hence part of the Committee’s consideration of this 

matter that should remain confidential) and that disclosed 

the details of at least one prior order of the Committee that 

was not public. See April 21, 2023 Letter from Mark 

Chenowith to The Hon. Kimberly A. Moore, Chief Judge, 

United States Court of Appeals for the Federal Circuit, at 

2. 

Prior to that letter, other information that was subject 

to the confidentiality provisions outlined above was also released to the press. That release prompted the Judicial 

Council to take action pursuant to Rule 23(b)(1) and Rule 

23(b)(8) to release certain materials pertaining to this proceeding. Rule 23(b)(1) provides that a Judicial Council 

“may disclose the existence of a proceeding under these 

Rules when necessary or appropriate to maintain public 

confidence in the judiciary’s ability to redress misconduct 

or disability,” and Rule 23(b)(8) provides that a Judicial 

Council “may authorize disclosure of information about the 
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consideration of a complaint, including the papers, documents, and transcripts relating to the investigation, to the 

extent that disclosure is justified by special circumstances 

and is not prohibited by the Act.” The commentary to Rule 

23(b)(8) explains that, “where a complainant or other person has publicly released information regarding the existence of a complaint proceeding,” the Judicial Council may 

release materials “in the interest of assuring the public 

that the judiciary is acting effectively and expeditiously in 

addressing the relevant complaint proceeding.” Commentary to Rule 23(b)(8).

The Judicial Council should not repeatedly be placed in 

the position of needing to address “special circumstances” 

created by improper public releases of information in violation of the Act and the Rules—thereby forcing further 

piecemeal, official releases of information about this proceeding and undermining the entire structure of confidentiality the Act and the Rules are intended to establish. 

Going forward, the Committee expects that, with this reminder of the confidentiality obligations imposed by the 

Act and the Rules, there will not be further releases of information relating to the Committee’s consideration of the 

complaint identified against Judge Newman in violation of 

the Act or the Rules.

Accordingly, 

IT IS ORDERED THAT: 

(1) In accordance with 28 U.S.C. § 360(a) and Rule 

23(b)(1), Judge Newman and her counsel shall refrain from 

publicly disclosing information about the Committee’s ongoing consideration of and investigation into the complaint 

identified against Judge Newman;

(2) Failure by Judge Newman to comply with this Order or the Rules may result in the Committee seeking to 
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expand the scope of the investigation to include an inquiry 

into whether Judge Newman’s violation of this Order or

Rule 23(b) constitutes misconduct under Rule 4(a)(5); and 

(3) Violation of this Order or Rule 23 by counsel may 

result in an appropriate sanction. 

SO ORDERED: May 3, 2023.