>» New Civil Liberties Alliance
June 15, 2023

The Honorable the Members of the Special Committee of the
Judicial Council for the Federal Circuit

U.S. Court of Appeals for the Federal Circuit

717 Madison Place, NW

Washington, DC 20439

VIA EMAIL

Re: In re Complaint No. 23-90015 (Complaint Against Circuit Judge Paselin

Your Honors:

This letter is in response to the Special Committee’s orders of June 1, 2023, which stated that
“the Committee investigation will focus on the question whether Judge Newman’s refusal to cooperate
with the Committee’s investigation constitutes misconduct,” and that it “will likewise limit its
consideration of any remedial action solely to remedies for such misconduct that do not require
additional factual development.” Order at 3-4. Furthermore, the Special Committee directed Judge
Newman to “submit a brief /mited to addressing the question whether Judge Newman’s refusal to
undergo examinations, to provide medical records, and to sit for an interview with the Committee ...
constitute [st] misconduct and the appropriate remedy if the Committee were to make a finding of
misconduct ....” Id. at 6 (emphasis added). Finally, the Special Committee ordered that oral argument,
which is scheduled to be held on July 13, 2023, be closed to the public. Id.

The purpose of this letter is two-fold. First, we respectfully seek clarification of the Special
Committee’s order as to the scope of investigation and the hearing. Second, we request, pursuant to
Rule 23(b)(7), that the hearing be open to the public.'

With respect to the clarification request, we respectfully note that between the time of the
initial order initiating disciplinary proceedings against Judge Newman and the June 1 Order, Chief
Judge Moore issued several additional orders expanding the scope of the investigation. Thus, on April
6, the investigation was expanded to cover Judge Newman’s alleged conduct with respect to an
“employment dispute” within her chambers. On April 13, 2023, Chief Judge Moore further expanded
the investigation to cover Judge Newman’s alleged failure to cooperate with the Special Committee

' Pursuant to the same rule, Judge Newman consents (subject to necessary redactions) to the public
release of the present letter and any Order or other communication issued in response thereto.

1

9h Street NW Suite 450, Washington DC 20036]

) 869-520 www.NCLalegal.org


2|NCLA

stemming from Judge Newman’s alleged refusal “to accept service of orders issued under Rule
15(a)()(b).”” On April 20, 2023, Chief Judge Moore yet again expanded the scope of the Special
Committee’s investigation to include 1) Judge Newman’s alleged “retaliatory statements and conduct
toward and about” one of her chambers staff members, 2) Judge Newman’s alleged refusal to permit
one of her law clerks to “to be reassigned to work with a different judge” and requiring said law clerk
“to stay or resign,” and 3) “Judge Newman’s alleged conduct towards the Court’s IT Department.”
Finally, on May 26, 2023, Chief Judge Moore again expanded the investigation to cover Judge
Newman’s alleged refusal to cooperate with the investigation by refusing to submit to “the ordered
neurological evaluation and neuropsychological testing, to produce certain medical records, and to
meet with the Committee for a recorded interview.” Thus, the pending complaints against Judge
Newman can be grouped into three general categories, viz, 1) the allegation of mental or physical
disability; 2) the allegation of improper behavior toward staff, and 3) the allegation of failure to
cooperate.

The June 1 Order suggests that the Special Committee, “fiJn light of the practical constraints
that Judge Newman’s [alleged] refusal to cooperate places on the Committee’s ability to proceed” will
not, “at this time” pursue the allegations regarding Judge Newman’s mental or physical disability.
However, the June 1 Order is silent with respect to the second category of allegations, although the
directive that Judge Newman’s submission to the Special Committee be “limited to addressing the
question whether Judge Newman’s refusal to undergo examinations, to provide medical records, and
to sit for an interview with the Committee ... constitute[s] misconduct” strongly suggests that the
Special Committee has abandoned (at least for the time-being) that line of inquiry as well.
Nevertheless, out of an abundance of caution and to protect Judge Newman’s rights, we are seeking
a formal clarification from the Special Committee as to whether our understanding of the June 1 Order
is correct.

Similarly, the June 1 Order was silent as to whether the Special Committee is continuing its
investigation into Judge Newman’s alleged failure to cooperate with the investigation on the basis of
Judge Newman’s alleged refusal “to accept service of orders issued under Rule 15(a)()(b).” Again, in
our view, the June 1 Order, which limits Judge Newman only to addressing the question whether the
“refusal to undergo examinations, to provide medical records, and to sit for an interview with the
Committee” is misconduct within the meaning of the Rules for Judicial Conduct and Disability
Proceedings, necessarily means that the allegation of failure “to accept service of orders issued under
Rule 15(a)(I)(b)” is not being pursued at least “at this time.” Accordingly, and in order to avoid any
prejudice to Judge Newman’s rights, we would appreciate a further clarification from the Special
Committee.

? This order also covered Judge Newman’s alleged failure to comply with a prior order requiring Judge
Newman to submit to medical testing. It is our understanding that at least that portion of the order
was vacated by the Order of May 3, 2023, which “reissu[ed] [the Special Committee’s prior] orders
regarding medical evaluation and testing and medical records and establish[ed] new deadlines for
compliance.” If our understanding is incorrect, we would appreciate a further clarification about the
import of the May 3 Order and its effect on the orders that were issued prior to Judge Newman’s
obtaining legal representation.


3|NCLA

Finally, we respectfully request that the Special Committee permit public attendance at the oral
argument in this matter, currently scheduled for 2:00pm on July 13, 2023. In its June 1 Order, the
Special Committee stated that “[t]here are no percipient fact witnesses to additional events that are
relevant to the misconduct determination.” The Special Committee further opined that “the question
whether Judge Newman’s responses to the Committee’s orders constitute ‘refusing, without good
cause shown, to cooperate in the investigation,’ Rule 4(a)(5), can be determined based upon the paper
record ... along with any legal argument Judge Newman wishes to submit ....” We agree with this
assessment. Because “the paper record” has already been released to the public, there appears to be
no weighty reason to close the hearing to the members of the public or the press.’

The Supreme Court has reminded us that all participants in judicial proceedings “will perform
their respective functions more responsibly in an open court than in secret proceedings.” Waller v.
Georgia, 467 U.S. 39, 46 n.4 (1984) (quoting Estes v. Texas, 381 U.S. 532, 588 (1965) (Harlan, J.,
concurring)). Though good reasons may exist for keeping disciplinary proceedings secret, when
exposing such proceedings to the public may intimidate witnesses or unnecessarily cast doubts on the
honorable service of an accused judge, the upcoming hearing raises no such concerns. As the Special
Committee itself acknowledged, there will be no witnesses and the argument will focus solely on a
legal question—whether Judge Newman had “good cause” for her alleged failure to comply with
orders to undergo medical examinations, turn over medical records, and sit for a video-taped interview
with the Special Committee. Nor will permitting the public to attend the hearing cast an unnecessary
cloud over Judge Newman. After all, the sum and substance of the allegations have already been
released to the public. Permitting public participation in the upcoming hearing will therefore serve
only to increase the public’s confidence in Judge Newmans abilities and the disciplinary process.

For the foregoing reasons we respectfully request that the Special Committee clarify its June
1, 2023 Order, and vacate that portion of said Order which prohibits public attendance at the July 13
hearing.

Respectfully submitted,
/s/ Gregory Dolin, M.D.

Senior Litigation Counsel
NeW CIVIL LIBERTIES ALLIANCE

* Of course, Judge Newman and her counsel fully commit not to disclose the names of any
witnesses ot any information that has not already been made public.