United States Court of Appeals for the Federal 

Circuit

UNDER 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 the

Committee’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 of

Comprehension . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .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 to

Counter 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 served 

with 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 to 

Judge 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 is 

still 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 the 

matter under the procedures established by the Judicial 

1 The Honorable Kimberly A. Moore, Anniversaries and 

Observations, 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

2 

Conduct and Disability Act of 1980 (Act)—the self-policing 

mechanism Congress created to address (among other 

things) judges who may no longer be fit for judicial office. 

Failing to act under the circumstances here would breach

our obligations under the Act, display disregard for the 

rights 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 “raw 

power,” 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 to 

attempt to address a difficult situation with concern for a 

valued colleague hoping for an informal resolution that 

would 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 them

at 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. 
IN RE COMPLAINT NO 23-90015

3 

On March 24, 2023, the Chief Judge, pursuant to the 

Act and its implementing rules, identified a Complaint and 

appointed 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 of 

comprehension, confusion, and an inability to perform 

basic tasks that she previously was able to perform with 

ease. 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. With 

no 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 her 

of 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. 
IN RE COMPLAINT NO 23-90015

4 

These reports are not of isolated incidents based on a 

few interactions with only one or two staffers. 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’s Office to Judge Newman’s own chambers staff. 

During this investigation two of Judge Newman’s five 

chambers’ 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 by

evidence regarding Judge Newman’s workload and productivity. Judge Newman acquiesced in several significant reductions in her workload starting in 2021. Despite the 

reduced workload, data from the Clerk’s Office shows that, 

over the last two years or so, she has taken four times as 

long to issue half the number of opinions as her colleagues. 

The Committee’s investigation culminated in an order 

on 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-psychological 

examination that would involve approximately six hours of 

cognitive testing. As was explained to Judge Newman, this 
IN RE COMPLAINT NO 23-90015

5 

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, a 

full 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 issue 

of 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 production 

of medical records and requested an interview? We answer 

in the affirmative. The evidence raising concerns about 

disability, just summarized, amply justified issuance of the 

Order. 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 for 

why the Council should not draw that conclusion. 

First, Judge Newman argues that this matter should 

have 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 only 

in “exceptional circumstances.” See Rule 26. And here, the 

Council concludes that no circumstances have warranted, 
IN RE COMPLAINT NO 23-90015

6 

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 the 

members of this Council have personal knowledge of disputed evidentiary facts concerning this proceeding—and 

thus are biased. Setting aside the Council’s disagreement 

with 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, the 

Committee 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 and 

its 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 with 

her, the argument sweeps too broadly. As a general matter, due process in this context does not require that adjudicators be totally ignorant concerning background 

information 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 their 

colleagues. 

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 
IN RE COMPLAINT NO 23-90015

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on the functioning of court staff and the functioning of this 

court. 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 more 

than a dozen interviews and a deposition, two of her staff 

had resigned just days earlier, and many troubling events 

were 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 sound 

course. 

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 the 

requisite 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 considered 

by 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 even 

approach probable cause to believe that Judge Newman is 

mentally and/or physically disabled.” Id. Indeed, Judge 

Newman expressly agreed that there was no need for an 

evidentiary hearing in this matter. June 15 Letter at 3. In 
IN RE COMPLAINT NO 23-90015

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addition, the Committee advised Judge Newman that it 

sought an interview with her so that she could provide the 

Committee 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 are 

true, there is nothing wrong with how she treated staff and 

she 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 these 

reports 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 the 

Committee 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 of 

the test. Properly scored and converted to the scale for a 

full test, it appears that Judge Newman scored below the 

normal range on that test. And a declaration provided by 

the physician who administered that test does not dispute 

that assessment. 

The second report is based in part on a different 11-

minute 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 good 

cause for Judge Newman refusing to take the full neuropsychological examination (six hours) requested by the 
IN RE COMPLAINT NO 23-90015

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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 in 

early stages. Ex. 2 at 2 (Manual for the Administration 

and 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 by 

pointing 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 the 

specifics 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 with 
IN RE COMPLAINT NO 23-90015

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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 hospital 

care, 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 noted 

that judges and court staff had provided information raising concerns (i) that Judge Newman was responsible for 

extensive delays in resolving cases and appeared unable to 

complete her opinions in a timely fashion (despite her reduced workload), and (ii) that Judge Newman appeared to 

suffer from “impairment of cognitive abilities (i.e., attention, focus, confusion and memory).” Id. at 2. The Order 

further 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 and 

information from staff describing behavior that raised concerns about Judge Newman’s cognitive state, including 
IN RE COMPLAINT NO 23-90015

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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 resolving 

cases 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 other 

choice, 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 and 

prepare a report and recommendation for the Judicial 

Council.3 

The Committee immediately began interviewing court 

staff to gather information. In addition, pursuant to Rule 

13(a) & (c), the Committee retained the services of Dr. 

as an expert consultant. Dr. has 

served as a consultant on judicial disability proceedings in 

other 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. 
IN RE COMPLAINT NO 23-90015

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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 was 

necessary for the Committee’s investigation to have Judge 

Newman undergo a neurological examination and full 

neuro-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 names 

of these specialists. It also noted that “Dr. is also 

available to speak to Judge Newman to answer any questions about the nature of the examination and testing” and 

provided Dr. s telephone number. April 7 Order at 

2. The order cautioned that refusal to comply without good

cause 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, the 

scope 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 scope 

of 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.
IN RE COMPLAINT NO 23-90015

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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 to 

provide records “of any treatment or consultation in the 

last two years regarding attention, focus, confusion, 

memory loss, fatigue or stamina.” Id. at 2. Finally, the 

order 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 is 

needed 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’s 

orders but insisting that the Committee first address a 

6 On April 20, an order was entered expanding the 

scope 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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request by Judge Newman to transfer this proceeding to 

another 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 was 

premature. The result of the medical examinations would 

likely determine the course of the investigation and need 

for 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 reasonable 

basis 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 the 

purview of the Committee. On March 8, 2023, the Judicial 

Council had voted unanimously to preclude the assignment 

of 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’s 

orders regarding medical examinations, medical records

and an interview. May 3 Judicial Council Order.
IN RE COMPLAINT NO 23-90015

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On May 10, 2023, Judge Newman objected to the Committee’s May 3 Order.9 See May 10 Letter. With respect to 

the 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 and 

testing,” 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 battery of neuro-psychological testing with a 

neuropsychologist, which would involve an interview and 

tests 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 district court against the members of the Committee and the 

entire Judicial Council. See Newman v. Moore, No. 1:23-

cv-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. 
IN RE COMPLAINT NO 23-90015

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believed that any additional tests were required, “such 

testing can be the subject of further discussion between the 

Committee and Judge Newman after th[e] initial examination has taken place.” Id. at 22. The Committee explained 

that 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 shed

light 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 and

not 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 the 

third time) that she produce the medical records; and (3) 
IN RE COMPLAINT NO 23-90015

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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 cooperate 

with 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 order

and 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 Newman’s requests that she be restored to the rotation of new 

case 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 be 

suspended 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 case
IN RE COMPLAINT NO 23-90015

18

The June 1 Order required Judge Newman to submit a 

brief, 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’s 

order, the Committee also provided Judge Newman all of 

the witness affidavits and the single deposition transcript 

on which the Committee had relied. June 1 Order at 5. 

Judge Newman thereby had the opportunity to respond 

to all the material the Committee had in its possession supporting the Committee’s order. 

Judge Newman submitted her brief on July 5 along 

with 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 of 

this 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’s 

request, 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 from 

a 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 to 

Judge Newman now will only interfere with her ability to 

clear her current backlog and exacerbate delays in her already long-delayed opinions.” June 5 Judicial Council Order at 4. 
IN RE COMPLAINT NO 23-90015

19

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, the 

reports indicate that the behaviors suggesting that Judge 

Newman may have a disability emerged over two years and 

increased in frequency and severity. Judge Newman has 

never specifically disputed any of the staff accounts, many 

of which are independently substantiated by Judge Newman’s own emails attached as exhibits. 

1. Evidence of Memory Loss, Confusion, and

Lack of Comprehension

Judge Newman has been having trouble recalling 

events, conversations, and information just days old and 

having 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 the 
IN RE COMPLAINT NO 23-90015

20

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 to 

compensation 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 to 

her). 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 in 

that 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 this 

time 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 both 

the 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.”); see

also Ex. 3 (email chain between Judge Newman and HR 

Director). 
IN RE COMPLAINT NO 23-90015

21

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 was 

in 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 for 

her.” Aff. [5] ¶ 2.

Judge Newman’s judicial assistant reported that, in 

daily 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 cases 

or 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 to 

have 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 typically 

bring 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 the 

opinion. 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 with 
IN RE COMPLAINT NO 23-90015

22

this rule because Chief Judge Markey told her she could 

take 30 days to vote. Id. Chief Judge Markey has been 

dead for 17 years and has not been a member of the Court 

for 32 years.

In another instance, Judge Newman was unable to 

complete 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 each 

time. 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 from 

one 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 are 

things 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 new 

technology, 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 
IN RE COMPLAINT NO 23-90015

23

(“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 never 

used 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 the 

same 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 her 

phones 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 that 

was happening.”); see Aff. [2] ¶ 8 (“She 

seems agitated and paranoid, and we frequently have to 

calm her down in order to help her with her problem.”); see 
IN RE COMPLAINT NO 23-90015

24

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 was

interfering with mail at her residence as well. Aff.

[7] ¶ 8.

In each instance, IT staff scanned her devices and

found no evidence to justify or support Judge Newman’s 

concerns. 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 located 

the 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 a 

file 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, she 

would 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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3. Concerns Raised by Events Surrounding

Chambers Staff

Recent events surrounding the departure of one of 

Judge Newman’s law clerks and her judicial assistant have 

raised 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 or 

comprehend repeated explanations given to her about simple staffing and IT matters related to the departure of 

these employees from her chambers, and (3) her hostile and 

accusatory 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, and 

resigned from her chambers. Both expressly requested no 

further 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 stated 

that 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 my 
IN RE COMPLAINT NO 23-90015

26

requests to stop, the clerk continued to contact me outside 

of regular working hours after bringing the matter to 

Judge Newman’s attention.”); Ex. 6 (email from Judge 

Newman to 95 staff members). Judge Newman sent this 

email to the court staff distribution list just three hours after being reminded not to use the court distribution for 

emails 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 the 

allegations of wrongful conduct . . . Information will be 

shared 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 to

respect the process, including the workstation move. Staff

members reported that on April 18, Judge Newman stated

her intention to have her judicial assistant forcibly removed from the building or arrested. See

Aff. [2] ¶ 6 (“Judge Newman then said that she was going

to have ‘removed from the court’ or ‘arrested.’”);

Aff. [7] ¶ 19 (“Judge Newman stated that she would

have removed from the court or arrested.”). Although 
IN RE COMPLAINT NO 23-90015

27

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 to 

chambers 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 an 

alternative 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 the 

Judge. 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” in 

chambers. Id. ¶ 7. He requested to be transferred to another chambers. Id. ¶¶ 11, 14. Judge Newman refused to 

let him work for another judge, indicating that the optics 

would not be good for her and that he had two choices: stay 

or resign. Id. ¶ 14. The law clerk resigned, and he was 

taken on as a law clerk by another judge of the Court; he 

requested no further contact with Judge Newman, and 
IN RE COMPLAINT NO 23-90015

28

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 separation 

from 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 in 

another 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 my 

chambers 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—all 

of which contribute to our concerns that she may have a 

disability that renders her unfit to continue as an active 

judge. 

Moreover, Judge Newman’s career clerk, who has been 

with her for several years, on advice of counsel, refused to 

answer basic questions from the Committee about her 
IN RE COMPLAINT NO 23-90015

29

responsibilities in chambers or about Judge Newman’s 

mental fitness, instead invoking the Fifth Amendment 

privilege against self-incrimination. That invocation was 

proper only if it was reasonable to believe that answering 

questions about the clerk’s duties could expose the clerk to 

criminal 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 accused 

various 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 is 

reported 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 that 
IN RE COMPLAINT NO 23-90015

30

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), see 

Aff. [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 over 

again that all chambers information was stored on her 

chambers’ shared network drive, not the hard drive on that 

computer; that the hard drive on that computer had specifically been checked multiple times and contained none of 

her 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 Court13 detailed Judge Newman’s repeated email accusations that he was involved in “illicit removal” of equipment from her chambers and that he 

participated in the theft or removal of chambers records including her financial disclosure information—along with 

accusations that he was acting as Chief Judge Moore’s lawyer, that he was Judge Newman’s “adversary,” and that he 

repeatedly 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 also 

Aff. [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.
IN RE COMPLAINT NO 23-90015

31

the move of this desktop ever hindered, restricted, or interfered with access by either you or your chambers staff to 

these materials.”). He described Judge Newman’s behavior 

towards staff as “agitated, belligerent and demonstratively 

angry.” Id. ¶ 37 and attached exhibits. And he has stated 

that “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 the Federal Circuit and 

in 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 also Aff. 

[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 away 

from her when that was not the case.” Id. ¶ 8; see also 

Aff. [8] ¶¶ 3, 5 (“Judge Newman was pacing back and 

forth 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 
IN RE COMPLAINT NO 23-90015

32

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 unabated

even into July of this year, when she claimed that “decades 

of my work and my information” were on the computer and 

accused staff of “clever dissembling,” being “shameful,” and 

engaging in “trickery” after they again repeatedly explained that none of her information was on the hard drive 

of 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, the 

Help Desk Manager, and the Clerk of Court regarding her 

allegations that they stole her computer and files and their 

attempts 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 to

Judge 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 and 

patiently explained to Judge Newman that “[e]very chambers stores those items on their network drives which are 

accessible 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 can 

again explain what I have explained to you repeatedly for 

months. Your files are on your network drive. You have 

access 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 drive 

that belongs to you. All of your data is on the Newman 

share.”); id. at 12 (Director of IT confirming a third time 

that “no Newman Chambers files reside on 
IN RE COMPLAINT NO 23-90015

33

PC. There is nothing to return you as we informed you previously that all Newman Chambers files were moved to the 

Newman 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 (“ was 

audibly upset and bothered and he said it was due to how 

Judge Newman behaved and treated him.”); id. ¶ 6 (stating 

interactions with Judge Newman caused “emotional stress 

and discomfort, including loss of sleep and heightened anxiety”); Aff. [11] ¶ 8 (“I was left shaken and 

upset from this experience.”); Aff. [1] ¶ 37 (“The past 

few 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 my 

mental 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. 
IN RE COMPLAINT NO 23-90015

34

5. The Response Alleges that She Can “Run

Her Chambers as She Sees Fit”

Rather than dispute the specific evidence provided by 

staff members, Judge Newman insists that none of it indicates any cause for concern and that short of “obvious red 

lines 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 to 

participate in the EDR process and “refus[e] to accept” an 

alternative 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 where 

an alternative work arrangement was created specifically 

for 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 not 

reasonably defensible.14 Indeed, it is so far outside the 

norm that, coupled with the other evidence described 

herein, it supports the concern that Judge Newman’s behavior may be the result of cognitive impairment. 

14 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 have 

taken an enormous toll on Judge Newman.” Response 53-

54. 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.
IN RE COMPLAINT NO 23-90015

35

In Adams, the behavior of Judge Adams towards others 

in the courthouse was held sufficient to support an order 

compelling 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 the 

Committee’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 accuracy 

of 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 for 

the first time that she was never given an opportunity to 

contest 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 then 

again in its May 16 Order and its June 1 Order. And in 

none 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 recited 
IN RE COMPLAINT NO 23-90015

36

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] of 

these affidavits,” but instead to dismiss them as reflecting 

“petty grievances” and to argue that “even assuming” the 

information in them was true, it “doesn’t even approach 

probable cause to believe that Judge Newman is mentally 

and/or physically disabled.” July 5 Br. 15. Other aspects 

of the affidavits she dismissed as “hardly worth responding 

to.” 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 do 

so.15 

To the extent Judge Newman now alleges that the 

Committee 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 that 

are 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 that 

time to challenge the affidavits. Oral Arg. Tr. at 39:22–

40:6. 
IN RE COMPLAINT NO 23-90015

37

“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 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 hold 

an 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 the 

oral 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 accounts 

of 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 belied 

by 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, and 

an interview. Judge Newman had many opportunities and 

never disputed it. 

B. The Evidence of Productivity Deficiencies,

Even With a Reduced Workload, Supports the

Committee’s Order
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In addition to the overwhelming evidence of Judge 

Newman’s troubling interactions with staff, evidence from 

the 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 data16

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 (61 

days). Aff. [12] ¶¶ 11, 13.

Despite reductions in Judge Newman’s workload, this 

trend 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 are 

a 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 each 

month. 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 the 

Clerk’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, the 

Council credits the data from the Clerk’s Office. 
IN RE COMPLAINT NO 23-90015

39

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 (65 

compared 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 the 

number of cases as her colleagues.18

17 Judge Newman was not merely an outlier from the 

average active judge, but from all active judges who sat the 

full period reviewed. The next closest judge authored 55 

opinions (43 majority and 12 dissents/concurrences) with 

an 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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40

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 the 

Committee’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 a 

disability. 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 matter 

should be transferred, and she has already provided two 

medical reports. She also has attacked earlier orders and 

actions by the Chief Judge or Committee as a basis for excusing non-compliance with the May 16 Order. We find 

these 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 to 

maintain, 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 of 

which was the oldest case in the court). In the last six 

months while sitting on zero motions panels, and zero new 

cases, Judge Newman has taken on average 255.5 days to 

write her 4 majority opinions. 
IN RE COMPLAINT NO 23-90015

41

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 request19 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 the 

Chief 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 we 

see) 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 rely 

on (1) inapplicable authority or (2) unfounded accusations 

of 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 the 

policies 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 precisely 

refers 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 concerning 

transfer itself. 
IN RE COMPLAINT NO 23-90015

42

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 of 

cases 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 of 

incidents that occurred entirely in the past could potentially be pursued from afar without serious detriment, this 

case, 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 that 

access 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 of 

disputed evidentiary facts concerning the proceeding” and 

are therefore biased—requiring transfer. See Response

20 As the Committee has observed, the Breyer Committee Report’s factors counseling against transfer weigh 

against 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, it 

would “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 and 

other judges that would come up as disputed facts.” Id. Indeed, the only question before the Council is whether to 

adopt the proposal set forth in the R&R.

Second, Judge Newman’s argument simply proves too 

much. The argument appears to be that judges on this 

court have views of Judge Newman by virtue of having interacted and worked with her, and that such knowledge 

prevents impartiality and demands transfer.22 See 

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 that 

judges 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 necessarily 
IN RE COMPLAINT NO 23-90015

44

Response 71–73. The implication of this argument is that 

circuit 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 more 

than 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 they 

know and work with her. 

Rule 25 provides particular standards for disqualification. And the commentary to that rule expressly states 

that “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 and 

form 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); see 

recuse, that is not correct. It has historically been, and 

should 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 with 

the rules, but entirely appropriate. If attempting to speak 

with a judge after concerns have arisen necessitated 

recusal, it would stymie the informal resolution process. 
IN RE COMPLAINT NO 23-90015

45

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 each 

other 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 each 

other). The way Congress structured the Act and the Judicial Conference structured the rules suggests that both 

bodies 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’s 

transfer 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 are 

worth 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 that 

point, the Committee had already conducted more than a 

dozen 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 came 

unsolicited to the Committee to complain about their 

23 We note also that, in 28 U.S.C. § 372(b), Congress 

provided 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 their 

circuit.
IN RE COMPLAINT NO 23-90015

46

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, providing 

them 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 to 

another 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 nature 

of Judge Newman’s behavior as efficiently as possible and 

also reassured staff that they had an immediate avenue for 

presenting concerns raised by Judge Newman’s behavior so 

that 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; see 

also 28 U.S.C. § 353(c); id. §§ 352(a), 353(a); H.R. Rep. 96-

1313 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 
IN RE COMPLAINT NO 23-90015

47

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’s 

observation (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 been

lost”; 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 have

inhibited, 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 time

and 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 of 

comprehension—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 irrelevance 

rests on a belief that the Committee deems her delays in 

resolving 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 reject 

that request. Transfer at this point, when the four-month 

investigation 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 the 

Committee 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 some 

kind 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 the 

full neuro-psychological testing that was recommended by 

Dr. 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 transferee 

council is not bound by any evidence, reports, or decisions 

made by the transferor council,” and she has expressly 
IN RE COMPLAINT NO 23-90015

49

“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 that 

transfer 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 by 

permitting 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 “a 

kind 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 was 

an 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 to 

go 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 free

from such abuse. Also important is ensuring that the harm

to 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 not

well 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 were
IN RE COMPLAINT NO 23-90015

50

transferred, would further subject court staff to the conduct 

described above.

Finally, to the extent Judge Newman suggests that the 

decision 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 a 

fundamental misunderstanding of this process. The rules 

already provide for review by the Committee on Judicial 

Conduct and Disability of the Judicial Conference of the 

United 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 ordered 

by 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 the 
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51

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 selected 

by the committee on the ground that the judge preferred 

different 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 his 

choosing and an opportunity to direct to some extent the 

nature 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’s 

view 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 relationship 

with Judge Newman,24 and counsel also has stated that he 

was 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 at 

https://www.law360.com/ip/articles/1718953/2nd-doc-toevaluate-judge-newman-says-she-s-fit-to-serve. 
IN RE COMPLAINT NO 23-90015

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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 the 

judge would prefer different tests administered by different 

providers. We continue to believe that it is important that 

independent medical practitioners be selected to perform 

the 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 an 

important interest: ensuring that what may well be the 

most 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-minute

partial MOCA nor the 11-minute 3MS are substitutes for 

the ordered full neuro-psychological examination (six 

hours) that Dr. advised was both necessary and 

that 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.
IN RE COMPLAINT NO 23-90015

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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 the 

report that made the Rothstein report unreliable. And the 

new declaration from Dr. Rothstein, submitted to the 

Council 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) and 

thus 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 not 

write, 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 erred 

in crediting her with the 3 points related to the clock. Dr. 

Rothstein does not dispute that if the 3 points attributable 

to 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 another 

problem with his earlier submission. He admits that he did 

not review any of Judge Newman’s medical records before 
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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 administration

of a Modified Mini-Mental State Exam (3MS). Dr. Carney 

reports 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 United 

States,” to count from 1 to 5 in forward and reverse, and to 

recall 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 not

designed “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 the 

two reports as adequate substitutes for compliance with 

the May 16 Order because they do not come close to 
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persuasively taking account of the actual requirements of 

the job at issue. To effectively discharge the duties of an 

active 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 of 

functionality.” 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 per 

month. 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 from 

the ability to recall simple “everyone knows” facts and a 

handful 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 the 

nature and demands of the job as an active judge, and the 

large body of evidence demonstrating Judge Newman’s potential cognitive problems, the full neuro-psychological 

battery 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 by 

attacking earlier orders and actions and trying to construct 

a general picture of a hostile, bad-faith course of action, riddled with improprieties, by the Chief Judge and the other 

members of the Special Committee. This attack on how the 

three 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 new 

case 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, we 

conclude that the assertions and characterizations are incorrect and unfounded and that the overall portrait wholly 

lacks 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 for 

non-compliance with the May 16 Order by focusing on 

other 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 be 

thrown 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 the 

episodes at issue. As to a 2022 “faint[ing]” episode, there 

is 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 just 

fainted 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 it 

sought 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 other 

treatment. Judge Newman presented medical evidence in 

both 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 to 

submit her own declaration on these points. 

Second, the Response is also critically wrong about the 

role 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, and 

stamina problems, that were the basis for the March 24 Order. The points Judge Newman focuses on were mentioned 

on 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 the 

heart 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 exhibited 
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inappropriate behavior in managing staff” and staff concerns about, e.g., her memory, confusion, and focus), noted 

that 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 physical 

causes of the symptoms, reflected in particular cardiac or 

fainting episodes at particular times, was not critical to the 

basis for the identification of the complaint, though such 

causes 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 reasonable 

basis for the April 7 Order, but the core argument is that 

the 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 Order 

makes clear on its face that, even before that Order was 

entered, 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 undertook 
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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 call 

for 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 require 

compliance 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, and 

the Council is not considering, a misconduct charge based 

on refusal to comply with the April 7 Order. Instead, the 

Committee provided further explanations to Judge Newman in response to her objections, presented further information discovered in the investigation, and entered new 

orders that were based on a fuller record and set out 
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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 this 

Council.

Thus, after issuing an April 17 Order regarding medical records, the Committee entered an order on May 3 that 

detailed 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, and 

agitation, 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 information 

from 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 detail 

about 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 some 

earlier stage in the process does not determine the issue 
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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.” Department 

of 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 so 

for 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 Order
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 The Response seeks to call into question the duty to 

comply with the May 16 Order by attacking an assortment 

of 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, the 

March 24 Order could have avoided the factual errors, and 

there would be no predicate for the investigation in the first 

place.” 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 meet 

with 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 been 

raised. 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 of 

engaging in informal discussions when concerns about a 

relevant disability arise and become so strong that it is no 

longer responsible to avoid the difficult topic of whether the 

judge 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 to 

launch an investigation under Rule 5 was called for in 
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order to fulfill the clear purposes of the JC&D Act—unless 

the disability concerns were dispelled or made moot by a 

voluntary 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 good 

faith, 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 Judge

made in February 2023, before the events of March 2023 

precipitated the current proceeding. Over three pages, the 

Response 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 new 

sitting 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 before 
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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. There 

is no basis for finding bad faith in the Chief Judge’s February 2023 assignment decision.

e. The Response suggests that hostility or bad faith is

evinced 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 Order 

at 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-naming
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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 mention 

of 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 the 

hearing was conducted in an extraordinarily and uniquely 

hostile fashion. None of the attorneys appearing at the 

hearing 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 the

bench’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 to

reschedule interviews, the Committee refused. Response

10. But only one of Judge Newman’s staff asked to
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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 the 

Committee had reason for the formality. Even before the 

career clerk’s broad refusal to answer questions at the deposition, the Committee reasonably doubted the career 

clerk’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’s 

questioning 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 the

Committee’s response to a request for Clerk’s Office data 

in 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 the

already-furnished data that would be material to the specific issue presented, namely, whether the May 16 Order

was justified and non-compliance with it constituted misconduct. The Council sees no bad faith or hostility in that

ruling.

* * *

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 a 

diversion from the proper inquiry, namely, the basis for the 
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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 to

comply 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 investigation 

of a complaint.” Judge Newman’s refusal to cooperate was 

a serious matter because it prevented the Committee from 

being 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 the 

proper 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 a 

system 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 with 

proceedings 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 the 

interests 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 severe 

a 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 to 

justify 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 in 

refusing to comply with orders for medical examinations. 

There, however, the JC&D Committee had just vacated the 

original 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 an 

active 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 the 

bottom of her potential disability will have a direct and deleterious effect on the efficient administration of the 
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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 a 

suspension from new cases for two years and the reassignment of his entire docket of pending cases. See Order of 

June 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 raised 

in 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 of 

suspensions 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 the 

proceeding itself). Those matters do not provide a relevant 

benchmark for a case such as this involving (i) a suspected 

disability that directly affects a judge’s adjudicative responsibilities and (ii) thwarting the process for fulfilling 

the duty to get to the bottom of (and address) the suspected

disability. 

Judge Newman is also incorrect in arguing that the 

Council 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 is 

appropriate 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 be 
IN RE COMPLAINT NO 23-90015

71

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 “shall 

consist 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 or 

disability. See generally, e.g., Corley v. U.S., 556 U.S. 303, 

316 (2009) (noting that “a more specific statute will be 

given 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 order 

for medical evaluations, medical records, and an interview 

constitutes sanctionable misconduct. See Rule 20. After 

due consideration of these materials, the Judicial Council 

FINDS: 

26 The Council sees no need for oral argument in this 

matter. Pursuant to Rule 20(a) Judge Newman was provided an opportunity to submit argument in writing and 

submitted a 120-page brief. 
IN RE COMPLAINT NO 23-90015

72

(1) The evidence establishes reasonable concerns that

Judge Newman suffers from a disability preventing her 

from effectively discharging the duties of her office. In light 

of 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 for

her 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 and 

expeditious 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 to 

consideration 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. 
IN RE COMPLAINT NO 23-90015

73

modification or rescission if justified by an end of the refusal to cooperate.

(2) The Committee shall maintain jurisdiction over this

matter.

SO ORDERED: September 20, 2023.
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. 

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 a 

right to review of the Council’s decision as provided in Rule 21(b). The Council will 

transmit the order and memoranda incorporated by reference in the order to the 

Committee 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: Chief Judge Kimberly A. Moore

To: Judge Pauline Newman

Subject: Fwd: Publication of AIPLA QJ 50-4 Anniversary Issue

Date: Thursday, March 9, 2023 8:02:50 PM

Attachments: 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 have

been in my words the heroine of the patent system. Please let us celebrate this amazing career

and life you have lived. Think very hard about the difference you have already made to

people like me. Your legacy will not be any particular case but rather the impression you leave

behind. 

With affection and admiration,

Kimberly

Get Outlook for iOS
From: Chief Judge Kimberly A. Moore

To: Judge Pauline Newman

Subject: meeting

Date: 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: Judge Pauline Newman

To: Chief Judge Kimberly A. Moore

Subject: RE: meeting

Date: 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: Chief Judge Kimberly A. Moore

To: Judge Pauline Newman

Subject: RE: meeting

Date: 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 my

hope that you and I can meet soon to try to resolve the process. Please let me

know what day and time you prefer March 24 or March 29 or if you want to meet

sooner, 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: Chief Judge Kimberly A. Moore

To: Judge Pauline Newman

Subject: RE: meeting

Date: 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: 

Chief, 

-Kimberly A. Moore 

Judge Pauline Newman 

PN 

Friday, March 17, 2023 11:21:45 AM 

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: Chief Judge Kimberly A. Moore

To: Judge Pauline Newman

Subject: CONFIDENTIAL

Date: Friday, March 17, 2023 12:00:00 PM

Attachments: 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 no

choice but to email you the attached order. I have not formally docketed this

order 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 the

formal 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 be

possible. Because of the sensitive nature of the document, I will send you a

separate 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 90033, U. S. A. 

Copyrighted. 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, and 

McHugh, 1975). Compared with the MMSE, the 3MS has more 

standardized administration and more graded scoring; it 

also assesses a broader variety of cognitive domains and 

covers 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 (Teng 

and 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 this 

purpose 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 be 

achieved with the use of a much shorter test, a short 

version of the Cognitive Abilities Screening Instrument, or 

CASI-Short (Teng, Hasegawa, Homma, et al., 1994). Although 

many of the items in the MMSE and the 3MS are not sensitive 

for detecting dementia in its early stage, they are useful 

for other purposes, including that of monitoring the 

progression of dementia to its middle and late stages. 

This Manual contains answers to many frequently asked 

questions

This manual has been prepared after more extensive use 

of the 3MS by us and others since the first article on the 

3MS was published (Teng and Chui, l987). In this manual we 

have 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 of 

birth has been switched; the three choices for spatial 

orientation have been modified. Wherever information 

provided in this manual differs from that in the original 

article, 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 iPhone

1
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 will 

need 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. 

-udge 

Best, 

Kimberly A. Moore 

U S. Court of Appeals for the Federal Circuit

717 Madison Place NW 

DC20439 

2 
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 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 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 bring back to Judge Newman on April 24 including the

fact that will 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 Judge

U 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 fill 

of 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 3

rd 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 a 

follow-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 2

nd 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. 2:20 PM: Telephone call with Judge Newman to discuss the temporary rehire of which you approved for a period ofup to 90 

days, with the possibiliz of an extension. I also notified her of your approval to seeK a waiver of the salary offset that rehired annuitants 

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 to to 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 09 PM: I sent a follow-up e-mail to Judge Newman shortly after our call to restate the approval to temporarily rehire-and to again 

offer to reach out to 

3. 4:53 PM: 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. 2:49 PM: I responded to Judge Newman's last email and again asked if I 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 )A 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 vote prohibiting her from hiring any permanent staff and again asked for permission to move forward with 

2. 3:55 PM: 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. 

Thursday, April 27, 2023 

1. 10:25 AM: As a follllup i the 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 o�alegal I 

indicated that I wo get e announcement posted as soon as she approved it I also asked if I could reach out to begin the 

process of her temporary rehire. 

Sunday, April 30, 2023 

2. 6:35 PM: fudge Newman responded to my email asking for a copy of the vacang 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 re-employed 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 relatea to contract employees and providecl lfi xs to tlie regillatfons. I explained that the only way fo�to

return as a contractor would be through a temporary staffing agency contracted by the cowt 

2. 7:35 PM: 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 Director 

of 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

g she would receive no additional pay for working at the court?' 

5 10:40 AM: I wrote to Judge Newman explaining again that would receive her full annuity (pension payment}, as well as pay for 

would 

hours worked

be full-time 

. I asked 

or part-time; 

the judge 

2} 

to 

approximatel

provide the following 

y how many 

infomiation 

hours per 

so 

week

that 

� 

I could complete 

work; 

the 

and 

waiver 

3} the effective 

request form: 

date of

1} -whether

s return. 

­

6. 11:04 AM: Judge Newman wrote to ask if vould be paid for her work at the court and what would happen to her pension. She 

indicated that she wantsllllllto work ·as the need arises" and that-s 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 that 

ould work on an intermittent basis. I explained the process for reporting-s hours to HR. I also 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. 

9. 2 OS 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 )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 

separately p

aid er time worked at the cowt Judge NewmanTsm about how ould be paid for hours worked at the court, 

whether 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 earninr fo� whatever hours she works 

for the judge. I further explained the method and timing of payments and notified Judge Newman that ·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 to 

follow-up with answers to those questions that required more research. -tated that she would prefer to have all of the answers in 

writing 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

prals for the Federal Circuit 

7 
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 such

approval, 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 an

email 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 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

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: Chief Judge Kimberly A. Moore

To:

Subject:

Date:

; Judge Pauline Newman

RE: Judicial assistant and law clerk positions

Tuesday, May 9, 2023 8:40:17 PM

Attachments: 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 from made 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 that has 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 to

suggest 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 with you 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 the

vacancy announcement and asked you to approve it for posting You failed to respond to that request and was unable to move forward has repeatedly

sought 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 has sent to you 

Kimberly Moore

Kimberly A. Moore

Chief Judge

U S. Court of Appeals for the Federal Circuit

11
Exhibit 4
From: Chief Judge Kimberly A. Moore

To:

Cc:

Subject: FW: 

Date: 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 or

have access the chambers Y drive or receive emails to -PN. remains

available to assist with matters of transition and has prepared a transition memo

which will be sent to chambers by . There should be no direct

communication from any member of the Newman chambers including the judge to

. All communication with from 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
From: 

Sent: 

To: 

Cc: 

Judge Pauline Newman 

Wednesday, April 19, 2023 4:29 PM 

Chief Jud e Kimberly A. Moore 

Subject: 

I agree that this is appropriate. Please prodess-departure expeditiously. 

Sent from my iPhone 

On 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 that

request for no contact must be followed. -has removed hisrsonal 

items from the Newman chambers. IT has been instructed to remove access

to 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 your

paralegal in the middle of the night to perform some work-related and

some 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 how

much you know about these inappropriate contacts so I am calling

them to your attention as supervisor to ensure that this

uncomfortable 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 informed

that the judicial council voted unanimously not to assign you to sit on any new

cases pending the results of the investigation into potential disability/misconduct

identified in the order which you have been given. As you know, consistent with

the 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 are

resolved. 

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 by otherwise I need to do so. I have been advised that I

should make certain that you appreciate that should 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

4
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 of

the court. This is more significant than a phone call to a member of my chambers staff. 

Judge Newman 

Sent from my iPhone

On 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 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 by 

otherwise I need to do so. I have been advised that I should make

certain that you appreciate that should 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 your

paralegal in the middle of the night to perform some work-related and

some 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 how

much you know about these inappropriate contacts so I am calling

them to your attention as s supervisor to ensure that this

uncomfortable 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
1

From: Judge Pauline Newman

Sent: Thursday, April 27, 2023 5:25 PM

To: Chief Judge Kimberly A. Moore

Cc:

Subject: 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 iPhone

On 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 assistant   was

willing). 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 to

proceed 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
Exhibit 8
1

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 stated 

in 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 question 

of 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 outside 

of 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 same 

day. 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 have 

continued to provide you with IT support and assistance; full access to existing communication 

and 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 to 

the 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 to 

and available on your private chambers network drive; and directed the prompt restoration of a 

desktop 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
2

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 iPhone

On 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, the 

Judicial 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 this 

point.

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 be

emailed 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 same

format, again using the same password.

Copy of Current Orders. I will transmit by email to you today all orders already 

entered 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 
3

clarified that Judge Newman has continued and continues to have full access to her 

chambers materials and the ability to transmit opinions to the Clerk’s Office for 

issuance. 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 technical 

assistance and support for Judge Newman that we currently provide to all of the 

other 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
Exhibit 9
From: 

Sent: 

To: 

Cc: 

Subject: 

Chief Judge Moore, 

Judge Pauline Newman 

Thursday, July 6, 2023 10:23 AM 

Chief Judge Kimberly A. Moore 

Return of my chambers computer

I once more request the return of my chambers computer, with my stored information . It is 

apparently 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
From: 

Sent: 

To: 

Cc: 

Subject: 

Chief Judge Kimberly A. Moore 

Thursday, July 6, 2023 11 :49 AM 

Judge Pauline Newman 

RE: Return of my chambers computer 

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 to 

you multiple times that when resigned any of your chamber's information that had been 

stored 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 have 

communicated this to you repeatedly by email. I copy them on this so that they may confirm yet 

again, 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

[Director of IT; Help Desk Manager; Clerk 

of Court]
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: 

Sent: 

To: 

Cc: 

Subject: 

Good afternoon, 

-[Director of IT]

Thursday, July 6, 2023 12:11 PM 

Chief Judge Kimberly A. Moore; Judge Pauline Newman 

[Help Desk Manager; Clerk of Court] 

RE: Return of my chambers computer 

I can confirm has no access to Judge Newman's shared drive nor has any of Judge 

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 return 

it immediately. 

Judge Newman 

Sent from my iPhone 

6 
From: 

Sent: 

To: 

Judge Pauline Newman 

Thursday, July 6, 2023 5:06 PM 

Chief Judge Kimberly A. Moore 

Cc: 

Subject: Re: Return of my chambers computer 

I again request that the computer drive containing my information be immediately returned to 

me. 

Judge Newman 

Sent from my iPhone 

7

[Director of IT; Help Desk Manager; 

Clerk of Court] 
From: 

Sent: 

To: 

Cc: 

Subject: 

Judge Newman, 

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] 

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 from 

you, 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 your 

chambers. 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: 

Judge Newman, 

[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 Desk 

Manager; Clerk of 

Court] 

We have checked, double checked and tripled checked and there is no data on any local computer 

or 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: 

Judge Pauline Newman 

Thursday, July 6, 2023 9:54 PM 

Chief Judge Kimberly A Moore 

Cc: 

Subject: Re: Return of my chambers computer 

Judge Moore, 

Correction. My chambers computer was removed and has not been returned, despite my 

frequent requests. I require its return. 

Judge Newman 

Sent from my iPhone 

10

[Director of IT; Help Desk Manager; 

Clerk of Court] 
From: 

Sent: 

To: 

Cc: 

Subject: 

Judge Newman, 

Chief Judge Kimberly A. Moore 

Friday, July 7, 2023 8:24 AM 

Judge Pauline Newman 

RE: Return of my chambers computer 

[Director of IT; Help Desk Manager; 

Clerk of Court] 

I have been informed by IT and our Clerk of Court that the following information has been 

communicated to you no less than a dozen times in writing by at least three different individuals: 

our Director of IT, , our Head of IT Help Desk, , and our Clerk of Court, 

. Each of w horn is copied on this email. I shall nonetheless request that they 

again explain to you what I understand they have told you repeatedly. 's computer 

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 

Judge Newman, 

[Director of IT] 

Friday, July 7, 2023 9:00 AM 

Judge Pauline Newman [Help Desk 

; Chief Judge Kimberly A. Moore Manager; Clerk of 

RE: Return of my chambers computer Court] 

I checked again yesterday and no Newman Chambers files reside on s PC. There is 

nothing 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

Re: Return of my chambers computer Court] 

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 was 

done. 

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: 

Cc: 

Subject: 

Judge Moore, 

Judge Pauline Newman 

Friday, July 7, 2023 12:16 PM 

Chief Judge Kimberly A. Moore 

Re: Return of my chambers computer 

[Director of IT; Help Desk Manager; 

Clerk of Court] 

I have no interest i n-•s computer. I request the return of my computer and its contents. If 

it has been destroyed, please advise who authorized the destruction, and why. 

Judge Newman 

Sent from my iPhone 

14 
From: 

Sent: 

To: 

Cc: 

Subject: 

-[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 

Judge Newman, 

Respectfully, I must disagree that this matter has never been explained to you. I personally 

have attempted to explain this to you in several email communications. I will again attempt to 

do so here. Computers are assigned to individuals and not specific chambers or 

individuals. 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 that 

any 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 and 

only 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 your 

chambers records after he was no longer working in your chambers. 

_.s 

I will also note that I previously offered to have you or a member of your staff personally inspect 

desktop to confirm the above but this offer was declined. 

-noted, 

While I understand your frustration with the situation, my staff and I are at a loss since, as 

there are no files that can be returned. Moreover, 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. 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 

Judge Newman, 

[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 

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] 

Chief Judge Kimberly A Moore [Director of IT; Help

Re: Return of my chambers computer Desk Manager]

My main chambers computer contains opinion drafts, forms, records, correspondence, and decades of stored and 

archived 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 drafts, 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: 

Judge Newman, 

-[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 

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 that 

chambers. 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 never 

received 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] 

Ch• f J d K" b I A M [Director of IT; Help ; 1e u ge 1m er y . oore D k M ] Re: Return of my chambers computer es anager 

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 other 

chambers 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: 

Judge Newman, 

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 

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: 

Judge Pauline Newman 

Friday, July 7, 2023 3:44 PM 

Subject: 

; Chief Judge Kimberly A. Moore 

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 my 

chambers information? 

Judge Newman 

Sent from my iPhone 

21

[Clerk of Court] [Director of IT; Help 

Desk Manager] 
From: 

Sent 

To: 

Cc 

Subject 

Judge Newman, 

[Clerk of Court] 

Friday, July 7, 2023 4:08 PM 

Judge Pauline Newman 

; Chief Judge Kimbertj A. Moore g:i:�

c

�::::�]

Help 

Re: Return of my chambers computer 

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 inconsistent with long standing policy. There is nothing left that either I or my staff can do 

to 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] 

• Chief Judge Kimberly A. Moore

Re: Return of my chambers computer 

[Director of IT; Help 

Desk Manager] 

I seek the return of the computer and drive containing decades of my work and my information. It was taken from my 

chambers 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: 

Judge Newman, 

[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 

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 

That is incorrect. 

Sent from my iPhone 

Judge Pauline Newman 

i.-

Friday, July 7, 2023 4:29 PM 

[Clerk of Court] 

• Chief Judge Kimberly A. Moore

Re: Return of my chambers comput er 

25 

[Director of IT; Help 

Desk Manager] 
From: 

Sent 

To: 

Cc: 

Subject: 

-[Clerk of Court] 

Friday, July 7, 2023 4:32 PM 

Judge Pauline 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: 

Judge Pauline Newman 

Friday, July 7, 2023 4:44 PM 

Subject: 

; Chief Judge Kimberly A. Moore 

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

[Clerk of Court] 

[Director of IT; Help 

Desk Manager] 
From: 

Sent: 

To: 

Cc: 

Subject: 

Judge Newman, 

[Clerk of Court] 

Friday, July 7, 2023 4:50 PM 

Judge Pauline Newman 

• Chief Judge Kimberly A. Moore [Director of IT; Help

Re: Return of my chambers computer Desk Manager] 

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 

- [Clerk of Court]

Judge Pauline Newman 

11111111111111 

Friday, July 7, 2023 5:13 PM 

[Clerk of Court] 

Chief Judge Kimberly A. Moore 

Re: Return of my chambers computer 

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 represent justice, not trickery. 

Judge Newman 

Sent from my iPhone 

29 

[Director of IT; Help 

Desk Manager] 
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 other 

dementias. I have testified as an expert witness during the past 4 years at trial or at deposition in the case

listed 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 University

of 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 02/26/2021-

06/14/2023

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 to

Silence 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 the

nature 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 an

addendum 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 the

records 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 court

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.” The complaint detailed allegations of decreased work output with significant and 

habitual 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 an

allegation 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 resolution 

of 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 were

unremarkable, with no obvious areas of deficit. Demeanor was calm and cooperative. She had eyeglasses
Page 3 of 6

that she wore for reading tasks but removed in conversation. She spoke fluently and attended well to the 

interview, 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 that 

term 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 for 

my colleagues to put me through these tests. When people are being evaluated, you eventually get to 

questions 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 that 

misrepresents the results.” The voluntary nature of the cognitive evaluation was reiterated, and the 

matter 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 no 

idea. I got a call and said I’d be willing.” Judge Newman expressed that she finds her work intellectually 

and 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 some 

natural 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 when 

her opinions were not in line with others. She noted, “they are saying I’m grouchy and my staff have been 

leaving. I’ve been arguing with the IT staff because they took my [secretary’s] computer two or three 

months 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 and

context—is brought into question by the prospect of cognitive decline. Unrelated to this discussion, but

brought 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 to

what 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 of 

dehydration. I was not admitted.”

She denied having balance problems. She explained that she fractured her wrist while sprinting to take a

photo 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—well

perhaps 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 history

of 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 with

no 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 or

children, 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 to

her 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, produced

a 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 possibility

of 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 personally

administered the 3-MS several hundreds of times to individuals of varying cognitive abilities, my

experience is that the examination usually requires 20 to 30 minutes to complete. The 3-MS is given in a

highly 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 the

examination. 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 was

dismayed to hear of this result and scolded herself for not thinking of barnyard animals as a category. She

scored 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 no

evidence of current substantial medical, psychiatric, or cognitive disability. She is ambulatory, provides a

complete 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 to

show 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 the 

Report of Independent 

Medical Examination 

of Pauline Newman

by

Regina M. Carney, M.D.
THE MODIFIED MINI-MENTAL STATE EXAMINATION (3MS) 

Center: Family#: Individual #: Individual's Name: 

Date of Exam: Examiner: 

,,,, ,.."\),.._ }> 1 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 be 

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. 

ST ART TIME ll!lf..Jllfll 

I. Who is the president of the United States now? CORRECT ..................... .(y 

2. 

3. 

INCORRECT ................... 0 

RECORD: (.) , �\IU.V\ \ REFUSED ....................... 7

Who was the pre�ent before him? +�I\Sll�°"L "llll,J...,...._,�-'<1M!f .S) CORRECT ..................... (J.> 

RECORD: lb., J111 f°a.VY\t8W S- -=WJJb\'{) 

Who is the Vice President of the United States now? 

INCORRECT ................... O 

REFUSED ....................... 7 

CORRECT .................... Ul

INCORRECT...... Sf' 

REFUSED ·······---1 

4. 

REcoRD, k'.o 'IY\e). a:;- H 3⁄4 ri s

Who was the Vice President before� � CORRECT ___ _,(!) 

5. 

6. 

RECORD: :th, I h11 ftiV'f'<l LIS fie '4�

Who is the governor of (your state) now? 

W< 6,_c, VO-!- �v.c. o... �ovi... 1 n. OC· 

RECORD: HOW 4x:()cJ! r\ix k'\• 1 �4.td,-t .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 the 

card away, and have you repeat all 3 words. 

(HIM/HER) 

SHOW WORDS AND HAVE RESPONDENT READ. CORRECT 

IF (HE/SHE) MISREADS. TAKE CARD AWAY. Now what 

were those three words? HAVE RESPONDENT REPEAT. IF THERE 

TRIALS). 

ARE ERRORS, CONTINUE WITH ADDITIONAL TRIALS (UP TO 3 

SCORE FIRST TRY. REPEAT WORDS FOR THREE TRIALS ONLY. 

TRIAL#2 

SHIRT 

NICKEL 

HONESTY 

V

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

repeat them. 

Form Name: AD 3MS 

Revised: 8/16/06 

INCORRECT.. 0

REFUSED...... 7 

CORRECf ____ d\ INCORRECf 

REFUSED 

___ '::.f('

7_ 

REFUSED-----'-7 

SCORE (0-3) 131 

NUMBElt 

NEEDED 

OF� 

'DJALfQ 

L0n1ors 
7. Now please count from 1 to 5.

ASSIST ONLY ONCE IF NEEDED. DOES NOT COMPREHEND TASK SCORE O ON 

BACKWARD TASK AND GOTO ITEM 8 

RECORD: V 

I 

✓ 

2 

✓ 

3 

✓ 

4 

✓ 

5 

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

CORRECT .... ........ ........................ ('.j> 

I OR 2 ERRORS ................................ 1 

RECORD: v' ✓ ✓ ____.,,..___ ,/ :,:3 ERRORS/CAN'T DO .................. 0 

5 4 3 2 REFUSED .................................... ? 

8. Please spell the word "World." DOES NOT COMPREHEND TASK SCORE O ON 

ASSIST ONLY ONCE IF NEEDED. BACKWARD TASK AND GO TO ITEM 9 

RECORD: _,L_ ✓ / ____£_ ./ 

w 0 R 

•. 

L D 

Now please spell "World" backwards. 

RECORD: V _______L _,L ✓ ✓ �g��ci'r?.:.°.F

.���E��·�·�°-��:. l.J 

D L R 0 w REFUSED ........ ..... ....................... ? 

9. 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:

RECORD: V 

(SHIRT) (NICKEL) (HONESTY) 

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

I) One of the words was something you

wear.

RECORD __ 2 

2) SHOW CARD. HAVE S. READ AND

MAKE SELECTION. SHOES, SHIRT,

SOCKS ................................................... ! 

CIRCLE WORD. 

3) IF STILL INCORRECT RESPONSE,

PROVIDE CORRECT ANSWER

(shirt). 

1) One of the words was some money.

RECORD __ 2 

2) SHOW CARD. HA VE S. READ

AND MAKE SELECTION. PENNY,

NICKEL, DOLLAR ................................. 1 

CIRCLE WORD. 

3) IF STILL INCORRECT RESPONSE,

PROVIDE CORRECT ANSWER

(nickel). 

1) One of the words was a good personal

quality or virtue.

RECORD _________ 2 

2) SHOW CARD. HA VE S. READ AND

MAKE SELECTION. HONESTY,

CHARITY, MODESTY ............................. I 

CIRCLE WORD. 

3) IF STILL INCORRECT RESPONSE,

PROVIDE CORRECT ANSWER

(honesty). 

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

REFUSED .............................................. 7 REFUSED .... ........................................... ? REFUSED ................................................ 7 

Form Name: AD 3MS 

Revised: 8116/06 

SCORE FOR SHIRT"············· 

SCOREFOR NICKEL � ............ ,3 

SCORE FOR HONESTY........ 3

JLoutofl6 
ORIENTATION SECTION (ITEMS 10-18) 

10. 

12. 

13. 

14. 

15. 

16. 

What year is it? 

What is the season of the year? 

RECORD:5V'MN\eetlr!\• 

What day of the week is it? 

RECORD:, fri � 

What month is it? 

What is today's date? 

-

RECORD: ').._S_�-------

What state are we in? 

w$--O.rc.-1W1+ '"' �s� 

RECORD:�"':'1

ov-kll roe f.L II�

What county are we m? .�: V1rq:t\'<L ,.J I 

CORRECT .................................................................... Gi 

MISSED BY I YEAR .................................................... 1 

INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

. CORRECT WITHIN A WEEK .................................... (D 

MISSED BY I MONTH ................................................ 2 

INCORRECT BUT NAMES A SEASON ..................... 1 

INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

CORRECT ................................................................... @) 

MISSED BY I DAY ...................................................... 1 

INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

CORRECT.. .................................................................. U) 

INCORRECT BUT WITHIN 3 DAYS .......................... 2 

MISSED BY I MONTH ................................................ 1 

INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

CORRECT ................................................................... Q

MISSED BY 1 OR2 DAYS ........................................... 2 

MISSED BY 3-5 DAYS ................................................. 1 

INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

CORRECT .................................................................. (!) 

INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

CORRECT ..................................................................... (D 

INCORRECT/CAN'T DO ....................................... O 

RECORD:�� fell Meg REFUSED ............................................................... 7 

- ccx,.J..i ? MOt1.-1ju11.e� � ,MJ) 

17. What towu are we in? W-o..,l\;h!l'fl:lll ()a.. CORRECT ..................................................................... (j) 

IFS. DOES NOT ANSWER, PROMPT AS NEEDED: INCORRECT/CAN'T DO ....................................... O 

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...-

Form Name: AD 3MS 

Revised: 8/16/06 

REFUSED .............................. , ................................ 7 

CORRECT ................................................................. CJS' 

INCORRECT/CAN'T DO ....................................... 0 

REFUSED ............................................................... 7 

2o Outof20
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?

CORRECT ..................................................................... .(D 

INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

20. 

RECORD: fortl'\t.�d,

POINT TO YOUR CHIN.

What is this called?

CORRECT ...................................................................... [) 

INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

RECORD: ll.¥,i\,,

21. POINT TO YOUR SHO 

What is this called? 

DER. ----BQJ;�<:::[ ................................................................ (0 

t--\ CAN'T DO ....................................... O

a ........................................................ 7

22. POINT TO YOUR�OW.

What is this call':51' /

"'

4

�e. �.s Po,u e.s c:\.ow " f> \� \ 

1..,""1:UUOCT .................................................. ) ............... Q) 

INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

23. CORRECT ..................................................................... Ci) 

What is this called? INCORRECT/CAN'T DO ....................................... O 

REFUSED ............................................................... 7 

24. Now I am going to give you a category and I want you to name as many things as you can that come from that

category. For example, if I said "fruit," you would say "orange, apple, or banana." Can you name another kind of

fruit? 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. START 

TIMER. TELL SUBJECT, "Begin now". ALLOW 20 SECONDS. IF NO 

RESPONSE IN 10 SECONDS, REPEAT THE QUESTION ONCE, 

RECORD; ALLOW ANOTHER 10 SECONDS, THEN GO TO ITEM 25. 

Form Name: AD 3MS 

Revised: 8/16/06 

SCORE ....................... (0-10) 

REFUSED ........................ 97 

1°1sl 

---1,;Lout of 15 
32. 

33. 

HAND S. A PENCIL AND FOLDED SHEET. 

Please write a sentence on this page. 

ALLOW I MINUTE, AND ANOTHER 30 

SECONDS AFTER PROMPTING (IF 

NECESSARY). PROMPT IF S. WRITES 

INCOMPLETE SENTENCE: Write the

sentence, "The band played and the crowd 

cheered." 

SHOW S. SHEET WITH DRAWING. Here is

a drawing. Please copy the drawing on the 

same paper. POINT TO BOTTOM OF THE 

PAGE BELOW DOTTED LINE. ALLOW I 

MINUTE FOR COPYING. 

LEGIBLE, CORRECT SENTENCE .......................... Gl 

LEGIBLE SENTENCE WITH ERRO R(S) ................ Y

LEGIBLE, CORRECT SENTENCE AFTER 

PROMPT ....................................................................... 3 

LEGIBLE SENTENCE WITH ERROR(S) AFTER 

P ROMPT ....................................................................... 2 

WRITES NAME OR LEGIBLE, INCOMPLETE 

SENTENCE AFTER PROMPT ..................................... 1

ILLEGIBLE/CAN'T DO ........................................ 0 

REFUSED ............................................................... 7 

SCORE EACH PENTAGON L .Jl 

5 SIDES ........................................................... (!) . . (J) 

I UNEQUAL SIDE ............................................ 3 ... . . 3

OTHER CLOSED FIGURE ............................... 2 ..... 2 

2 OR MORE LINES ........................................... 1 , .... 1 

CAN'T DO ............................................................ 0 

REFUSED ............................................................... 7 

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 DOES

NOT GIVE ALL CORRECT ANSWERS, P ROMPT AS NEEDED:

RECORD: ______ V __ _ v 

(SHIRT) (NICKEL) (HONESTY) 

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

I) One of the words was something you

wear.

RECORD ___ 2 

2) SHOW CARD. HA VE S. READ AND

MAKE SELECTION. SHOES, SHIRT,

SOCKS ................................................... 1 

CIRCLE WORD. 

3) IF STILL INCORRECT RESPONSE, 

PROVIDE CORRECT ANSWER (shirt).

I

) One of the words was some money.

RECORD ________ �2 

2) SHOW CARD. HAVES. READ

AND MAKE SELECTION. PENNY,

NICKEL, DOLLAR ................................. 1 

CIRCLE WORD. 

3) IF STILL INCORRECT RESPONSE,

PROVIDE CORRECT ANSWER

(nickel). 

I) One of the words was a good personal

quality or virtue. 

RECORD _______ 

.2 

2) SHOW CARD. HAVES. READ AND

MAKE SELECTION. HONESTY,

CHARITY, MODESTY ............................. 1 

CIRCLE WORD. 

3) IF STILL INCORRECT RESPONSE,

P ROVIDE CORRECT ANSWER

(honesty). 

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

REFUSED .......................................... ? REFUSED .......................................... ? REFUSED ........................................... ?

Form Name: AD 3MS 

Revised: 8/16/06 

SCORE FOR SHIRT .................... LJ 

SCORE FOR NICKEL ................. LJ 

SCORE FOR HONESTY ............. lJ 

M_outof24 
NOTES: �-h" /JflS wevc 

�ere, j i m � rr\\.r • cS�ul d-\.L {_ -\-o lJJ o..s ti h& h v- DC: ( flat3MS Score

Page I Total: j': / 8

Page 2 Total: {,(, I 16

Page 3 Total: J..0 120

Page4 

Page 5 

Total

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-l 

l-io (\JES-r\/
CLOSE YOUR EYES 

ALZHEIMER DISEASE CLINICAL DEMENTIA RATING (CDR) 

Center: Family#: Individual#: Individual's name: 

�II...,___,___ �� 

Exam Date: Examiner: 

Evaluation by: � In Person O Telephone WMedical Records 

Reconstructed? O Yes [;;?'No O Unknown 

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

None Questionable 

0 0,5 

Memory • NO memory loss or s!i�::) Consistent slight 

Inconsistent forgetfulness forgetfulness; partial 

recollectiOn of events; 

"benign' forgetfulness 

f'(u°11y Oriented) Fully oriented except for Orientation sflght difficulty with time 

refatlonshlps 

-

Judgment �olves everyday 

,� Slight Impairment in 

Pr0blem problems & h.indles solving problems, 

Solving business & flnanclal affairs slmi!arlties, & differences 

well;judgment good In ... + 0..,,..,,,.,.. relation to past petforman� 

Communlt.

Affairs l ,ndependent function at � 

usual level In job, shopping, 

�lunteer & soc!al grou� 

Slight Impairment In these 

aCtivltles 

Home& ljfe at home, hobble$, and'\ Life at home, hobbles, Hobbles( Intellectual Interests wen and Intellectual Interests 

maintained __./ Impaired slightly 

fo"'"" 

Jee' vi.A.,..,,.,.� ,.8� R,,=.111,,1,., 

Personal ,,.,,,y capable or se1r ca,� Fully capable of self-care 

Care � 

\fJt II d.,r,S'S �11..I 

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""" d. h. H ; r e.-J "'-.S "" d J .foY

l"'<-S+r. ,rm

Co!llments: f. 

AOO: \,\II �pf> ..r-k I,(� 

DEPRESSION/STROKE HISTORY: A,,,.,,,,., .. ' 

Mild Moderate 

1 2 

Moderate memory loss; more Severe memory loss; only 

marked for recent events; highly learned material 

, defect Interferes with retained; new material 

everyday activities rapidly lost 

Moderate difficulty with llme Severe difficulty with tlme 

relationships; 01leni:ei;I for relationships; usually 

Place at examination; may disoriented to time, often to 

have geographic place 

dlsorlent.1tlon elseWherl! 

Moderate difficulty in Severly Impaired In handling 

handl!ng problems, problems, similarities, and 

Slmllarit1es, and differences; differences; social judgment 

social Judgment usually usualli,: Impaired 

maintained 

. 

Unable to function No pretense of Independent 

Independently at these function outside home; 

actMties although may stlll appears well enough to be 

be engaged In some; appears taken to functions outside 

normal to casual Inspection a famtly home 

Mild but definite Impairment Only simple chores 

ol function at home; more preserved; very restricted 

difficult chores abandoned; Interests, poorly maintained 

more complicated hobbies 

and Interests abandoned 

Needs prompting Requires assistance In 

dressing, hygiene, keeping 

of personal effects 

e X f.f re.,':) 

Severe 

3 

Severe memory loss; 

only fragments remain 

Oriented to per�on only 

Unable to make jud_gments 

or solve problems 

No pretense of 

lndepen_dent function 

O_!.Jtside home; appears too 

!ti to be taken to functions 

outside the home 

No significant funcllon In 

home 

Requires much help with 

persons care; frequent 

Incontinence 

Global CDR: 

Score: 

0 

CHRONOLOGICAL HISTORY OF DECLINE: (PLEASE CONTINUE IN THE BACK) I.J,s .J..�. \$ ""'-t-" it\1'U' 'h.l:l<J-iiOM 

Form Name: AD CDR � (I. wr.·s+ 0-

Revised:6/21/06 

. J,t.. C.,Q' 'M� l'f. 3J . 
Exhibit 11
From: 

Sent: Tuesday, January 31, 2023 11:10 AM 

To: 

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 of 

older cases is reduced. Thanks so much! 

Best, 

,M.P.S. 

Paralegal to the Honorable Pauline Newman 

--�l---20439

U.S. Court of Appeals for the Federal Circuit 

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 Assistant 

Chambers of Chief Judge Kimberly A. Moore 

U.S. Court of Appeals for the Federal Circuit 

717 Madison Place NW 

DC 20439 
Exhibit 12
Page 1 of 3

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 of

Judge 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, and

information gleaned from examining Judge Newman on June 21, 2023. I produced a report

based upon that examination on June 21, 2023, and it is attached as Exhibit 1 to this

Declaration.

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 is

standard for assessing cognitive function.

9. Before administering the MoCa examination I took an oral medical and neurological history

of 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 that

can 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 2 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.
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 have 

been 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 drop 

in 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 this 

controversy 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 is 

unable 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 were 

precise 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 as 

part of her neurological assessment.. 

My findings would support her having cognitive function sufficient to continue her 

participation in her court's proceedings. 

Ted L. Rothstein MD 

Professor of Neurology 

George Washington University 

June 21, 2023 
Exhibit 13
POINTS VISUOSPATIAL / EXECUTIVE

NAMING

MONTREAL COGNITIVE ASSESSMENT (MOCA ®)

Version 8.1 English

Name:

Education:

Sex:

Date of birth:

DATE:

Copy

cube

Draw CLOCK ( Ten past eleven )

( 3 points )

[] [] [] [] []

/ 5

/ 3

/ 2

/ 1

/ 3

/ 2

/ 1

/ 2

/ 5

/ 6

/ 30

NO

POINTS

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

Serial 7 subtraction starting at 100.

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

Similarity between e.g. banana - orange = fruit

Category cue

MIS = / 15 Multiple choice cue

Memory

Index Score 

(MIS)

Has to recall words 

WITH NO CUE

Points for 

UNCUED

recall only

(MIS)

X3

X2

X1

train - bicycle watch - ruler

The cat always hid under the couch when dogs were in the room.

FACE VELVET CHURCH DAISY RED

(Normal ≥ 26/30)

MIS: /15

TOTAL 

Add 1 point if ≤ 12 yr edu

© Z. Nasreddine MD

Administered by:

Training and Certifcation are required to ensure accuracy

www.mocatest.org

Contour Numbers Hands

[ ] [] [] []

[ ] [ ] [ ]

Read list of words, subject must 

repeat them. Do 2 trials, even if 1st trial is successful. 

Do a recall after 5 minutes.

MEMORY

ATTENTION

LANGUAGE

ABSTRACTION

DELAYED RECALL

ORIENTATION

FACE VELVET CHURCH DAISY RED

1ST TRIAL

2ND TRIAL

[ ]

[ ]

Subject has to repeat them in the forward order. 2 1 8 5 4

Subject has to repeat them in the backward order. 7 4 2

[ ]

[ ] [ ]

4 or 5 correct subtractions: 3 pts, 2 or 3 correct: 2 pts, 1 correct: 1 pt, 0 correct: 0 

Repeat: I only know that John is the one to help today. [ ]

[ ]

[ ]

[ ] [ ]

[ ] [ ] [ ]

 F B A C M N A A J K L B A F A K D E A A A J A M O F A A B

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

(N ≥ 11 words)

[ ] Date [ ] Month [ ] Year [ ] Day [ ] Place [ ] City

[ ]

93 86 79 72 65
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

8

9 ***SEALED HEARING***

10

11 ***CORRECTED***

12

13 NATIONAL COURTS BUILDING

14 717 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

PUBLIC REDACTED VERSION
2

Complaint No. 23-90015 7/13/2023

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

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
3

Complaint No. 23-90015 7/13/2023

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

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 for

5 argument -- or afternoon -- we're here for argument

6 today.

7 Mr. Dolin, are you going to proceed?

8 MR. DOLIN: I am.

9 CHIEF JUDGE MOORE: Please proceed.

10 MR. DOLIN: Thank you, Judge Moore. Good

11 afternoon, Your Honors. Gregory Dolin, senior

12 litigation counsel from the New Civil Liberties

13 Alliance, for The Honorable Pauline Newman. With me are

14 senior litigation counsel John Vecchione and, to his

15 left, Mark Chenoweth, president and general counsel of

16 the NCLA.

17 Before I begin on the merits, with the

18 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 to

22 remind counsel at the outset that our rules prohibit any

23 audio or video recording of this argument, and I want to

24 ensure that you are not recording it in any way.

25 MR. DOLIN: Judge Moore, we have read your order,
4

Complaint No. 23-90015 7/13/2023

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For The Record, Inc.

1 and we certainly have no intention of violating it.

2 CHIEF JUDGE MOORE: Okay. And then I just want

3 to remind counsel that all aspects of this hearing are

4 confidential until we agree otherwise, okay?

5 MR. DOLIN: Yes. And, actually, I would like to

6 come back to that point, but, yes, I do understand that.

7 CHIEF JUDGE MOORE: Please proceed.

8 MR. DOLIN: So, first, just objections for the

9 record. First, we object to this proceeding before this

10 Committee and the Judicial Council of this Circuit due

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

12 documented in our submissions.

13 We particularly object to the Special Committee's

14 membership given that all three of the members of this

15 committee attempted to convince Judge Newman to retire

16 in exchange for not launching this investigation. We

17 simply do not understand, given the constitutional and

18 statutory requirements, why the Chief Judge and/or the

19 Judicial Council have refused to request a transfer of

20 this matter.

21 Second, we object to this Committee's orders

22 excluding parts of Judge Newman's legal team and her

23 chambers staff from attending this hearing.

24 Third, we object to the Committee's refusal to

25 either provide us with a recording of this proceeding or
5

Complaint No. 23-90015 7/13/2023

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For The Record, Inc.

1 permit us to create one.

2 Fourth, and perhaps most importantly, we object

3 to Judge Newman's continued and illegal suspension from

4 the duties of the office to which she was nominated and

5 confirmed, and our appearance here today should not be

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

7 Finally -- and this, I guess, goes to your last

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

9 of our materials submitted to this committee, including

10 our letters of July 5th and 12th, the Committee's order

11 of July 7th, 11th, and 12th, and a transcript of this

12 hearing be released with appropriate redactions pursuant

13 to Rule 23(b)(7).

14 With these objections noted for the record, I am

15 ready to address the substance of today's hearing. On

16 the merits we take issue with the Committee's

17 characterization of Judge Newman's behavior as failing

18 to cooperate. Quite the contrary. Judge Newman did not

19 fail to cooperate with this investigation.

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

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

22 cooperate with an investigation that's conducted

23 consistent with the limits that the Constitution, the

24 Judicial Disability Act of 1980, and the rules of the

25 Judicial Conduct and Judicial Proceedings impose on such
6

Complaint No. 23-90015 7/13/2023

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

1 investigations.

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

3 indicated that Judge Newman is willing to cooperate --

4 i.e., work together -- as the word "cooperate" is

5 defined in the dictionary. In our letter on May 25th at

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: But Mr. -- I'm sorry --

10 MR. DOLIN: Of course.

11 JUDGE PROST: -- but on that matter of

12 cooperation, even the citation you had in your brief,

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

14 understood it, and on our restoring her to sitting. Am

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

16 MR. DOLIN: That is correct, because as of our

17 letter on May 25th, Judge Newman was suspended,

18 according to Judge Moore's own email, "pending

19 conclusion of this investigation." Respectfully,

20 there's no authority for such suspension.

21 We, of course, question the authority to suspend

22 even to -- at the conclusion of the investigation

23 because we submit that the Constitution does not permit

24 suspensions, but that aside, there's absolutely no

25 authority to suspend a sitting judge pending the
7

Complaint No. 23-90015 7/13/2023

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

1 investigation.

2 JUDGE PROST: No, I appreciate that. I just

3 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 to

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

12 letters, cooperation is a two-way street. It means

13 working together. This committee, on matters big and

14 small, refused to cooperate and work together with Judge

15 Newman, as we have now said a number of times, and

16 refused to transfer, even though every circuit faced

17 with a similar situation has transferred any

18 investigation of a circuit judge to another circuit, and

19 in refusing to do so attempted to support this refusal

20 with misleading data.

21 Just to point out that how every other circuit

22 dealt with this issue, even when a judge was no longer a

23 member of the Circuit Court, as was the case with then

24 Judge Kavanaugh when complaints were filed against him

25 citing his alleged misbehavior during Senate
8

Complaint No. 23-90015 7/13/2023

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

1 confirmation hearings for his current seat, by the time

2 complaints were filed, he was already confirmed to the

3 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 that

7 Council, the matter was transferred. Chief Judge

8 Srinivasan was requested to transfer the matter, and it

9 was transferred to the Tenth Circuit. We were able to

10 find not a single instance when a complaint against a

11 circuit judge that was not dismissed outright was

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

13 against Judge Kavanaugh, Judge Maryanne Trump Barry, or

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

15 judge of the Sixth Circuit, Judge Jones of the Fifth

16 Circuit. Every single one was transferred.

17 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 to

21 cooperate with Judge Newman.

22 Of course, it has refused to reinstate Judge

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

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

25 up until the order of the Judicial Council of June 5th.
9

Complaint No. 23-90015 7/13/2023

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

1 JUDGE TARANTO: Can I just ask you, the word

2 "cooperation" you're using with reference to the

3 committee based on what source?

4 MR. DOLIN: Based on the definition of that word

5 in the dictionary. It means working together, Your

6 Honor.

7 JUDGE TARANTO: The -- and the -- this is about

8 Judge Newman's refusal to cooperate with compliance with

9 the orders of the Committee, right?

10 MR. DOLIN: The hearing is certainly meant to

11 address that issue. What I am submitting to this

12 Committee is that in order to cooperate, in order to

13 work together, there must be -- both parties must

14 actually work together. At no point was the Committee

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 as

18 to why she remains suspended.

19 JUDGE TARANTO: So we're here on a -- as you

20 know, a very specific three-part issue, whether there

21 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 and

24 neuropsychological examinations; and third, the request

25 for interview.
10

Complaint No. 23-90015 7/13/2023

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

1 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

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

6 good cause for Judge Newman's refusal to take up that

7 express invitation for an opportunity to discuss the

8 claims with us?

9 MR. DOLIN: Well, Judge Taranto, I think I would

10 respectfully disagree with the characterization. I

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

12 said, factual errors or other general matters. In fact,

13 the invitation --

14 JUDGE TARANTO: I think the April 17th order was

15 perfectly general as to sit down for an interview. The

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 been

19 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: So, Judge Taranto, so to finish my

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

24 again, I so respectfully disagree with the

25 characterization and the following sentence. I think
11

Complaint No. 23-90015 7/13/2023

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

1 that the order did not specify exactly what the

2 Committee wished to interview Judge Newman about. There

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

4 JUDGE TARANTO: But she said she wanted it.

5 MR. DOLIN: That's -- respectfully, that's not

6 what it said.

7 JUDGE TARANTO: The April 17th said sit down for

8 an interview.

9 MR. DOLIN: But an interview implies that the

10 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 this

14 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, that

17 there was no opportunity to have an interview with this

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

19 interview with this --

20 MR. DOLIN: I don't think I suggested there was

21 no opportunity for an interview. I've suggested that

22 the Committee, in requesting an interview, did not

23 specify why it wants one. In fact, its request for an

24 interview was contrary to the prior assertion that this

25 Committee and this Judicial Council is apparently aware
12

Complaint No. 23-90015 7/13/2023

(301) 870-8025 - www.ftrinc.net - (800) 921-5555

For The Record, Inc.

1 of the personalities and aware of what has gone on,

2 which is why, supposedly, it's refusing to transfer the

3 matter elsewhere.

4 But furthermore --

5 JUDGE TARANTO: I'm sorry, "supposedly"? Where

6 do you get that?

7 MR. DOLIN: That was part of the order of -- the

8 first order that denied transfer. That was the order, I

9 believe, of May 3rd, and that order said one of the

10 reasons we're refusing to transfer is because we, the

11 Federal Circuit Judges, are familiar with the

12 personalities and with the issues in a way that other

13 circuits would not be familiar with.

14 JUDGE TARANTO: You're referring, I assume, to

15 some elaboration from the Breyer Committee Report about

16 why the Breyer Committee implemented the statute to make

17 transfer an exception, right, as a general matter?

18 MR. DOLIN: No, Your Honor. I'm referring to the

19 order of May 3rd, which -- hold on -- on page -- it's a

20 long order. I have to find it.

21 (Pause in the proceeding.)

22 CHIEF JUDGE MOORE: I think you want page 10 of

23 the May 3rd order.

24 MR. DOLIN: Page 10, thank you. Thank you,

25 right. So request for a transfer, so it starts at page
13

Complaint No. 23-90015 7/13/2023

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For The Record, Inc.

1 9, and it suggests that in this case relative ignorance

2 of the judges of another circuit, of local circumstances

3 and personalities that might make them less able to

4 gauge whether corrective action would be effective and

5 appropriate, and judges within another circuit would be

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

7 know well to take the actions they believe are

8 necessary.

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 this

12 matter was not asked to be transferred.

13 JUDGE TARANTO: Can I -- can I turn to a

14 different topic --

15 MR. DOLIN: Of course.

16 JUDGE TARANTO: -- and this is --

17 CHIEF JUDGE MOORE: Before you turn to that,

18 could I ask a followup question?

19 JUDGE TARANTO: Yes, of course.

20 CHIEF JUDGE MOORE: I guess, Mr. Dolin, I'm

21 perplexed. All this says is other judges in other

22 circuits would be less familiar with personalities. How

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

24 don't need to interview Judge Newman to understand the

25 concerns about errors of fact that she claims may exist?
14

Complaint No. 23-90015 7/13/2023

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For The Record, Inc.

1 MR. DOLIN: 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 that

4 she had a cardiac stent placed. Frankly, we don't even

5 understand where such allegations -- what the source of

6 these allegations are and on what basis they were made.

7 CHIEF JUDGE MOORE: Before we -- before we

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

9 what is the good cause for her refusal to interview. In

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

11 the order which requests an interview.

12 "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. I'll

17 give you that.

18 "We have previously invited Judge Newman to meet

19 with the Committee for an interview in which she could

20 provide the Committee with information relevant to the

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

22 including correcting any errors of fact. We again

23 request that Judge Newman participate in a videotaped

24 interview with the Committee which will provide her with

25 an opportunity to clarify these matters."
15

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1 How is the fact that another Circuit may be less

2 familiar with personalities good cause for her refusing

3 to participate in an interview which would create the

4 Committee with an opportunity to gain clarity into the

5 matters 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,

9 with respect to the cardiac stent, with respect to the

10 errors on --

11 CHIEF JUDGE MOORE: Actually, you have attorney

12 argument about them. You don't actually have evidence,

13 right?

14 MR. DOLIN: No, I respectfully disagree. It's

15 not an argument. It's a statement that --

16 CHIEF JUDGE MOORE: What's a statement?

17 MR. DOLIN: -- Judge -- it's a statement that

18 Judge Newman -- it's not an argument. It's a statement

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

20 JUDGE TARANTO: I'm sorry. Is that by somebody

21 with personal knowledge?

22 MR. DOLIN: Yes, by somebody with personal

23 knowledge.

24 JUDGE TARANTO: That's you?

25 MR. DOLIN: That is me, but I -- based on a
16

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1 personal --

2 JUDGE PROST: Well, since we're there, and I hate

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

4 that. If you feel it's appropriate for you to respond

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

8 didn'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 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, not

19 because I don't necessarily know the answer but because

20 of our standing objection to sharing medical information

21 with this Committee.

22 And so I think a better approach would be that

23 I -- I can't provide that answer, because --

24 JUDGE PROST: Okay. Well on that point,

25 though --
17

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1 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 and

7 neurologists would do, they would request certain

8 background medical information, and there's a reference

9 that he makes in that report to 

10 being treated by -- with a Pacemaker, and, 

11

12 a quick review of

13 just the Mayo Clinic's report on defining that -- and

14 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. You asked me more specifically whether

19 she had any issues in 2021. Maybe I misunderstood the

20 question. And so I think it's not -- it's really not a

21 secret Judge Newman has a Pacemaker. I believe it's

22 even in newspaper reports, but --

23 JUDGE TARANTO: But you don't -- you don't want

24 to say whether there was a cardiac event in 2021.

25 MR. DOLIN: I -- not because there was one and

[a cardiac condition]
18

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1 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 the

4 reasons we have stated in our letter or our numerous

5 letters.

6 CHIEF JUDGE MOORE: But just -- I just want to

7 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 a

11 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 the

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

16 nothing to do with 2021. She's had the Pacemaker for

17 quite some time.

18 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 another

21 hospital in May or June or July of 2021. You won't

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

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

24 idea.

25 MR. DOLIN: Correct.
19

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1 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

5 wouldn'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 a

8 fairly specific procedure --

9 JUDGE PROST: But we were -- okay, what we were

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

11 we're moving away from a heart attack and the technical

12 definition of a heart attack to then whether she suffers

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

14 symptoms for 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 . I'm not quite sure what, for

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: How about to finish up the list?

24 MR. DOLIN: Sorry?

25 JUDGE TARANTO: Finish the list. Confusion, some

[the cardiac condition]

[the cardiac condition]
20

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

2 with -- with the issue of --

3 MR. DOLIN: It might, but there is no --

4 JUDGE TARANTO: -- Judge Newman's ability?

5 MR. DOLIN: Again, anybody -- you know, I have

6 spoken to Judge Newman at length. Reporters have spoken

7 to Judge Newman at length. Former judges of this Court

8 have spoken to Judge Newman at length. No one, except

9 several staff members, have indicated that she was at

10 any point confused. So, yes, it --

11 JUDGE PROST: 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 would require

16 hospitalization or intensive medical care during that

17 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, the

22 Committee said that the underlying question may come

23 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

[the cardiac condition]
21

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

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

3 sanction, so --

4 JUDGE PROST: Well, with respect to the

5 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, and

9 that seems to be kind of what happened even in, you

10 know, 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 to

15 Dr. Rothstein, correct?

16 MR. DOLIN: Dr. Rothstein was provided with such

17 records 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 of

22 her medical conditions?

23 MR. DOLIN: I will refer you to the answer I made

24 just moments ago. Dr. Rothstein was provided with such

25 information as he deemed necessary to conduct his
22

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1 examination.

2 JUDGE TARANTO: And you think that that's an

3 answer to the question, what the source of the

4 information was?

5 MR. DOLIN: That I -- I believe that is the --

6 the answer that -- that I can give.

7 JUDGE TARANTO: Okay.

8 MR. DOLIN: 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 JUDGE TARANTO: And remind me what those reasons

13 are, please.

14 MR. DOLIN: Again, this Committee -- again, this

15 Committee --

16 JUDGE TARANTO: You keep saying "again," and if

17 you can state it so that I understand it clearly.

18 MR. DOLIN: We believe this Committee is

19 improperly constituted. We believe this matter should

20 not stay with the Federal Circuit. We believe this

21 Committee has not made a prima facie case as to why the

22 evaluation is needed in the first place.

23 So, for example, if you will allow me to

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

25 Committee has made on numerous occasions was that Judge
23

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1 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

4 remember your response -- your July 5th response

5 objected to providing information to or agreeing to

6 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 idea

14 of who these people are or why -- on what basis they

15 were chosen --

16 JUDGE TARANTO: Can you answer the question about

17 whether you're asserting that the Daubert standard

18 applies?

19 MR. DOLIN: Well, I think if you let me finish my

20 answer, I think -- I'll get to the answer --

21 JUDGE TARANTO: Just try to answer the direct

22 question.

23 MR. DOLIN: I understand, but I promise I will

24 get to it. Give me just a little bit of leeway.

25 We don't know who these people are, we don't know
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1 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

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

5 general idea that people doing the examination and then

6 providing supposedly an expert report to the Committee

7 have -- we have to have some assurance that these are

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

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

10 what 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 have

20 a sound foundation, a reliable foundation, and that it

21 is for that reason absolutely standard, that when the

22 expert testifies, he or she has to disclose the basis,

23 the materials he or she looked at and what their

24 reasoning was from them.

25 So if that's right, how is it that you think it's
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1 irrelevant what materials Dr. Rothstein was supplied?

2 MR. DOLIN: I don't think it's irrelevant. I --

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. You just think that we're illegitimate

7 outfits that doesn't deserve to get that answer.

8 MR. DOLIN: I don't think it's illegit -- I

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

10 I think this Committee is improperly constituted and is

11 an improper body to adjudicate this matter, and because

12 of the -- both the bias --

13 CHIEF JUDGE MOORE: Counsel -- Counsel, in your

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

15 Judge Newman. You told us his conclusion, that her

16 cognitive function is sufficient to continue her

17 participation on the Court, and then you expressly told

18 us that this examination should obviate the need for

19 further testing.

20 This is a hearing about whether it was misconduct

21 for Judge Newman to refuse to undergo the medical

22 testing we requested. Your answer in your brief to us

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

24 testing with a different person, and that should

25 suffice.
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1 Why, then, would it be improper for us to seek to

2 know the basis upon which that other testing was

3 rendered, like the material that doctor considered in

4 forming his opinion? You've asked us to accept that

5 testing in lieu of the testing we requested. So why

6 don't we then have an opportunity to inquire about the

7 reliability or the basis of that testing?

8 MR. DOLIN: Your Honor, respectfully, I would

9 again say that this Committee is not a proper body to

10 conduct an evaluation or examination for these

11 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 credit

18 as it wishes. Our response was to the Committee's

19 inquiry as to Judge Newman's cooperation, or lack

20 thereof, her reason for it, and the appropriate sanction

21 for doing so if she didn't cooperate.

22 We wanted the Committee --

23 CHIEF JUDGE MOORE: But didn't you tell us in

24 your July 5th submission that this Dr. Rothstein report

25 should put an end to the concern about Judge Newman's
27

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1 medical history and should, therefore, obviate the

2 concern of misconduct for not taking the testing that

3 was required?

4 MR. DOLIN: I've mentioned the report or we've

5 mentioned the report as part of the broader information

6 to the Committee that should, in our view, frame this

7 proceeding that should have never started to a close.

8 If you look at --

9 CHIEF JUDGE MOORE: This examination should

10 obviate the need for any further testing.

11 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 no

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

17 CHIEF JUDGE MOORE: Well, this is not about

18 whether she's disabled, Counsel. This is about whether

19 or not this Committee had a reasonable basis to order

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

21 request her medical records be provided to someone who

22 would evaluate her. This is not a proceeding about

23 whether she's disabled.

24 MR. DOLIN: So can we get -- and so this goes to

25 the answer I've provided to you, Judge Taranto, but can
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1 we go to the basis --

2 JUDGE TARANTO: Sure, we can get to that in just

3 one second. Just one thing that I wanted to make sure

4 about. After your July 5th responses, you know, we

5 issued an order two days later saying please supply us

6 three categories of documents, the unredacted version of

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

8 the category of written materials given to or relied

9 on -- 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

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

13 discussed.

14 But the category, what we asked you about or

15 directed you to supply July 7th is not just medical

16 records. It was all materials. So, for example, that

17 would include all written materials, would include all

18 of the written materials that you have from this

19 proceeding, declarations and other things that supplied

20 the basis for concern about Judge Newman. In your July

21 12th letter, it doesn't say anything at all about that

22 category. Were those materials supplied to

23 Dr. Rothstein?

24 MR. DOLIN: Your Honor, are you referring to

25 affidavits, various affidavits that --
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1 JUDGE TARANTO: All of the written materials that

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

3 have been given to you as undergirding the -- in

4 particular the May 16th order for --

5 MR. DOLIN: It is -- it is my understanding that

6 materials that are sealed were not provided to

7 Dr. Rothstein.

8 CHIEF JUDGE MOORE: What about the orders? Were

9 any of the orders which have been made public provided

10 to Dr. Rothstein?

11 MR. DOLIN: I don't know that he's reviewed the

12 orders either.

13 CHIEF JUDGE MOORE: I'm sorry. I couldn't hear

14 you.

15 MR. DOLIN: I do not know whether he reviewed the

16 orders either.

17 CHIEF JUDGE MOORE: But were they provided to

18 him? You don't know whether he reviewed them --

19 MR. DOLIN: I was not in the room, Your Honor.

20 CHIEF JUDGE MOORE: Pardon?

21 MR. DOLIN: I was not in the room, Your Honor.

22 CHIEF JUDGE MOORE: Oh, so you don't know if

23 Judge Newman provided him with those orders?

24 MR. DOLIN: I can't comment on that.

25 JUDGE TARANTO: You can't?
30

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1 MR. DOLIN: I can't comment on that as to whether

2 or not -- whether or not they were provided or whether

3 he reviewed them or -- et cetera. I do know that he

4 reviewed those materials that he deemed in his

5 professional judgment appropriate before administering

6 the test and reaching his conclusion and writing the

7 letter.

8 CHIEF JUDGE MOORE: Mr. Dolin, can you speak up

9 just a little bit? I'm having trouble hearing you.

10 Sorry.

11 MR. DOLIN: 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

14 of 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. We did ask you to come

21 here today prepared to discuss the report and his

22 scoring of the report. Is it true that Judge Newman

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

24 arm or her right wrist?

25 MR. DOLIN: It is.
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1 CHIEF JUDGE MOORE: And he says in two places she

2 was, therefore, unable to write. Is that correct?

3 MR. DOLIN: That's correct. She was advised

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

5 hold a pen until the bone was healed.

6 CHIEF JUDGE MOORE: So not to hold a pen until it

7 healed. So she was not able to do any written part of

8 the MoCA, correct?

9 MR. DOLIN: Correct.

10 CHIEF JUDGE MOORE: Correct, okay. So I am going

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

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

13 MR. DOLIN: I have it.

14 CHIEF JUDGE MOORE: You have it?

15 MR. DOLIN: I have it.

16 CHIEF JUDGE MOORE: I think you have a copy. So

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

18 MR. DOLIN: Yep.

19 CHIEF JUDGE MOORE: And this is the MoCA.

20 MR. DOLIN: Yep.

21 CHIEF JUDGE MOORE: As you can see, across the

22 top, there are three portions of the MoCA that require

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

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

25 MR. DOLIN: Fair enough.
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1 CHIEF JUDGE MOORE: Connect-the-dots on the left,

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

3 she couldn't do either of those because she can't write

4 at all, right?

5 MR. DOLIN: Yes.

6 CHIEF JUDGE MOORE: Okay. So each of those is

7 worth one point, correct?

8 MR. DOLIN: Um-hum, yep.

9 CHIEF JUDGE MOORE: Okay. Then you have to draw

10 a clock where you actually fill in all the numbers and

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

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

13 MR. DOLIN: Again, Your Honor, I'm -- I can't

14 comment on how she accomplished that task. I can

15 comment on Dr. --

16 CHIEF JUDGE MOORE: Did she accomplish that task?

17 MR. DOLIN: Again, I was not in the room. I --

18 CHIEF JUDGE MOORE: Okay. So do you understand

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

20 to be an inconsistency? The inconsistency is he said

21 she was unable to write in two places. You confirmed

22 that she's been instructed by an orthopedic surgeon not

23 to even hold a pen.

24 MR. DOLIN: Yes.

25 CHIEF JUDGE MOORE: There are three parts of this
33

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1 test that require writing. Dr. Rothstein said she

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

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

4 MR. DOLIN: I suspect that there are ways to do

5 the third by either having the clock identified --

6 JUDGE PROST: Again, I'm sorry, I can't --

7 MR. DOLIN: I suspect there are ways to do it.

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

9 well as time identified, et cetera.

10 CHIEF JUDGE MOORE: Actually, it turns out

11 there's not on the MoCA website. Do you know that the

12 MoCA website itself explains exactly how to administer

13 the test when you're unable to write? Let me provide

14 you with a copy of it. 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: The MoCA website is -- yes?

21 MR. DOLIN: -- with respect, Judge Moore --

22 CHIEF JUDGE MOORE: Yes, yes?

23 MR. DOLIN: -- if it were up to me, I would rely

24 on several decades' worth of experience of a full

25 professor of neurology at one of the nation's leading
34

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1 medical schools as opposed to a --

2 CHIEF JUDGE MOORE: Counsel, this whole professor

3 of neurology may generally be great, but his own report

4 is internally inconsistent. It says she couldn't write

5 in two places. You've confirmed she couldn't hold a

6 pen. He says because she couldn't write, she couldn't

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

8 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

11 those three questions according to the MoCA's own

12 rubric.

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

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 full

16 credit for drawing a clock.

17 MR. DOLIN: Of course, anything is possible.

18 CHIEF JUDGE MOORE: But that's why the Committee

19 has concerns and would like to see the document, is

20 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 full

25 professor of neurology and at one of the nation's
35

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1 leading medical schools over a -- a well respected

2 judge's interpretation of a MoCA website. And so I

3 understand what you've read, Judge Moore. Nevertheless,

4 I suspect that Judge -- that --

5 CHIEF JUDGE MOORE: Why -- you haven't seen the

6 MoCA test result, have you?

7 MR. DOLIN: I have not.

8 CHIEF JUDGE MOORE: Okay. So you haven't seen

9 it. He says that she couldn't write, so she couldn't do

10 the written portion. You don't think it's fair for us

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? Draw a clock?

14 MR. DOLIN: 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 test

18 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 to

23 expert-laden cases -- that highly credentialed experts

24 sometimes make mistakes?

25 MR. DOLIN: Of course. Everybody makes mistakes,
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1 including this Committee, but --

2 JUDGE TARANTO: And we don't have the basis for

3 determining that in a document that you submitted to

4 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 a

10 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 these

13 people were, the people that we identified as --

14 MR. DOLIN: No, we don't. I'm sure the Committee

15 does. 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. , give you a way, suggest that you feel free

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

20 and did you take advantage of that? If you had a

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 MR. DOLIN: No, because one of the -- because we
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1 would also -- we would not ever learn as to on what

2 basis was he selected. So, no, we don't know -- no, we

3 did not contact Dr. .

4 CHIEF JUDGE MOORE: Did you do any other research

5 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 MR. DOLIN: I have looked at their website

9 profiles.

10 CHIEF JUDGE MOORE: And did that cause you to

11 have reason to be concerned about their credentials?

12 MR. DOLIN: It didn't suggest to me that they are

13 either -- you know, that they -- they have their

14 diplomas, they have done their residency, they have

15 their licenses. That's all I know.

16 JUDGE PROST: Did you ask or inquire of

17 Dr. Rothstein if he had any information? He's a

18 renowned specialist that you've identified. Would he

19 be -- wouldn't he be an appropriate person to inquire in

20 terms of the credentials of these other people --

21 MR. DOLIN: No.

22 JUDGE PROST: -- if you know and trust him?

23 MR. DOLIN: No.

24 JUDGE PROST: He wouldn't be?

25 MR. DOLIN: No. We would not ask Dr. Rothstein
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1 of his opinion of some other doctor in a different

2 state.

3 CHIEF JUDGE MOORE: Okay. Just to be clear,

4 Judge Prost said you know and trust him. I just want to

5 make it clear for you. For your purposes, for the

6 record --

7 MR. DOLIN: I don't.

8 CHIEF JUDGE MOORE: Yes, that's where I was

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

10 correct?

11 MR. DOLIN: I did not. As with every American

12 who seeks medical care, generally in this country we

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

14 provider.

15 CHIEF JUDGE MOORE: Her name is Judge Newman.

16 MR. DOLIN: She is actually a doctor as well.

17 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: Personally or professionally?

24 MR. DOLIN: Both.

25 CHIEF JUDGE MOORE: Does that raise any concerns
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1 with you about whether or not he's rendering an

2 independent judgment?

3 MR. DOLIN: It does not. He rendered this

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

5 neurology. He put it on his letterhead. His license is

6 on the line --

7 CHIEF JUDGE MOORE: But he has both a personal

8 and a professional relationship with her.

9 MR. DOLIN: But that is not surprising. I mean,

10 people often have both a personal and professional -- I

11 to this day have a professional relationship -- personal

12 relationship with my pediatrician. That is not

13 surprising.

14 CHIEF JUDGE MOORE: Are you still seeing the

15 pediatrician? That was a joke, just trying to insert

16 some levity.

17 MR. DOLIN: Sometimes. I'll give you an answer.

18 Sometimes.

19 CHIEF JUDGE MOORE: Okay.

20 MR. DOLIN: Although not recently because she

21 retired.

22 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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1 talk about, and we kept you on the topics that we wanted

2 to ask questions about.

3 So I feel like if there's something you wanted to

4 move to, I want to give you the chance to --

5 MR. DOLIN: No, I am here to answer the

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

7 try to make them quick. One of the main concerns, I

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

11 judge of this Court and her, the difference between

12 those average times is 141 days. If you do the math,

13 between 199 that it takes Judge Newman and the 58 that

14 it takes an average judge --

15 CHIEF JUDGE MOORE: Fifty-three.

16 MR. DOLIN: -- 53, so it works out to be 141

17 days. In a recent paper by Dr. Katznelson, he

18 calculates that the average difference between a

19 unanimous opinion and an opinion with a dissent is 143

20 days. So a unanimous opinion issues 143 days earlier,

21 on average, than an opinion with a dissent or a

22 concurrent opinion. That seems to track pretty well

23 with Judge Newman's delays given the fact that she

24 dissents in more than half of the cases.

25 So her dissents -- her delays are not
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1 extraordinary, but even more important -- and that's

2 leaving aside the Dr. Katznelson paper -- this is based

3 on the Court's own data. Judge Newman's delays between

4 2020 and 2021, where there was apparently no suspicion

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

6 She's now --

7 CHIEF JUDGE MOORE: Counsel -- Counsel, her

8 sittings were reduced. She sat 65 cases through the

9 second period where the average judge sat 128. She sat

10 closer to the normal level of everyone else in the

11 earlier period. So the explanation, with all due

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: Of course, Judge Moore, but that was

17 not her choice. You -- it's hard -- it's hard for me to

18 understand how --

19 CHIEF JUDGE MOORE: You say that was not her

20 choice? None of the time period that we measured, just

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

22 prevented from sitting by any of us.

23 MR. DOLIN: My understanding, based on my time in

24 clerking on the Court and my conversations with Judge

25 Newman, is that judges don't just pick their cases, that
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1 the assignment -- and also reviewing the clerical

2 procedure -- the assignment is done by the Chief Judge

3 together working with the Office of the Clerk. Maybe

4 I'm wrong.

5 CHIEF JUDGE MOORE: Completely false.

6 MR. DOLIN: So...

7 CHIEF JUDGE MOORE: The Chief Judge has no input

8 whatsoever --

9 MR. DOLIN: Not assignment, but assignment to the

10 panels, assignment to the panels, for how many --

11 CHIEF JUDGE MOORE: That's completely false. The

12 Chief Judge has no input whatsoever. Every judge does

13 their own selection.

14 MR. DOLIN: Fair enough. I apologize for that

15 misunderstanding.

16 And the second point that --

17 CHIEF JUDGE MOORE: And just to be clear, the

18 assignment of cases is random in the event that somehow

19 this transcript didn't make that clear. No judge

20 chooses their individual cases --

21 MR. DOLIN: Of course.

22 CHIEF JUDGE MOORE: -- and the assignment of

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

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

25 prior -- during these time periods that were measured.
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1 MR. DOLIN: Well, fair enough, and then I

2 apologize for my misunderstanding and my misreading of

3 the clerical procedures.

4 I guess -- I know I'm out of time, but I did want

5 to touch on the potential sanctions. As we indicated

6 in --

7 JUDGE PROST: I'm sorry?

8 MR. DOLIN: Potential sanctions.

9 JUDGE PROST: Thank you.

10 MR. DOLIN: As we indicated in our letter, not

11 only is the requirement that Judge Newman sit for

12 medical exam unprecedented, has never been done, I know

13 this Committee cited the Adams case. Judge Adams never

14 actually did sit for the medical exam and had no

15 sanctions imposed for it.

16 JUDGE TARANTO: I'm sorry, but there was an order

17 upheld by the Judicial Conference Committee that

18 required him to do so. Then on remand he -- basically

19 he reformed his behavior, and the Judicial Council,

20 after a certain waiting period, decided that the

21 proceeding didn't need to go forward. So there has been

22 an affirmed order compelling in that case a psychiatric,

23 I think, examination, correct?

24 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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1 for -- because on remand, the judicial investigating --

2 the Special Committee requested that he sit for the exam

3 again. He declined to do it again. The Special

4 Investigative Committee recommended a six-month

5 suspension, which the Judicial Council of the Sixth

6 Circuit refused to endorse.

7 UNIDENTIFIED: Um-hum.

8 MR. DOLIN: So the requirement -- so Judge Newman

9 would 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

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

13 warranted because we do not believe that Judge Newman

14 either refused to cooperate or that, if she did, that

15 such refusal was without a good cause, but to the extent

16 that this Committee or this Judicial Council believes

17 that 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. If it takes some time for this

23 Committee to issue its report, then, of course, we will

24 have 21 days to review it and file our appeal to the

25 Judicial Council, et cetera, et cetera. That gets us
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1 probably into the October calendar. So at least on that

2 point, the sanction imposed, even taken into Judge

3 Adams' precedent, they suggested six months, and

4 certainly no more is appropriate here.

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

6 have 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

9 said 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 like

15 to have some guidance as to which part of, beyond the

16 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. You and I can work collectively on making

20 certain it's redacted. For example, quite a bit of

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 have

24 redacted. I don't remember if witness names were

25 discussed at all, but in any event, you know, I think
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1 that probably we should wait and see the transcript and

2 then collectively work together to ensure that what is

3 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. I

7 think I've made it in my letter -- in my last letter to

8 the Committee, as well as here orally --

9 CHIEF JUDGE MOORE: If you want me to, I will

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

11 MR. DOLIN: Right.

12 CHIEF JUDGE MOORE: -- to have the transcript

13 made public --

14 MR. DOLIN: After --

15 CHIEF JUDGE MOORE: -- and if it's okay with

16 you --

17 MR. DOLIN: -- right, correct.

18 CHIEF JUDGE MOORE: -- I would like to review the

19 transcript first to ensure that nothing about it

20 contains information that should be otherwise kept

21 completely confidential.

22 MR. DOLIN: Of course, and vice versa.

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

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

25 letter brief, which, of course, the Committee can, you
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1 know, edit for -- I don't think that there's any witness

2 names there, but the letter brief as well as

3 everything -- all the submissions up until now be

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

5 requests in the submissions themselves.

6 CHIEF JUDGE MOORE: Anything further?

7 Okay. Thank you, Counsel. This case is taken

8 under submission.

9 (Whereupon, at 2:51 p.m. the hearing was

10 adjourned.)

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25
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1 CERTIFICATE OF REPORTER

2

3 I, Susanne Bergling, do hereby certify that the

4 foregoing 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

7 of the parties to the action in which these proceedings

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

9 or employee of any attorney or counsel employed by the

10 parties 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
Exhibit 15

AXGLR available at, https://cafc.uscourts.gov/

wp-content/uploads/JudicialMisconductOrders/

July%2013,%202023%20Redacted%20Audio%

20Recording.mp3
Exhibit 16
From:

To: Chief Judge Kimberly A. Moore

Cc: Judge Richard G. Taranto; Judge Sharon Prost; 

Subject: Re: interview

Date: 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 ; Judge Sharon Prost

; 

Subject: RE: interview

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 Judge Sharon Prost

; 

Subject: Re: interview

Hello Chief Judge Moore,

I appreciate the urgency of Your Honor's need to interview me in this matter. Would it be

possible to conduct this interview tomorrow morning, April 12th? I have duties and

commitments in my role as Judge Newman's clerk in New York for the remainder of this

week. 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, the

undersigned judges need to interview you regarding Judge Newman. There is

some 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 will

attend. 

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

6 CIRCUIT JUDGE SHARON PROST

7 CIRCUIT JUDGE RICHARD G. TARANTO

8

9 DEPOSITION 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
2

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1 P R O C E E D I N G S

2 - - - - -

3 (Proceeding called to order

4 9:06 a.m.)

5 : I'm . I

6 represent with respect to this

7 proceeding, and I wanted to say that there was

8 improper service of the subpoena. She was not

9 given reasonable notice. She was given notice

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

11 reasonable period, and she was also served by

12 , who is an agent of the

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

14 and, therefore, is not a reasonable person to

15 choose to give service.

16 Also, the lack of timeliness imposed an

17 undue burden on my client.

18 CHIEF JUDGE MOORE: Okay.

19 LAW CLERK: , 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 and

25 testified further as follows:
3

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1 EXAMINATION

2 BY CHIEF JUDGE MOORE:

3 Q. Please state your name.

4 A. .

5 Q. And your address?

6 A. ,

7 .

8 Q. And what is your current job?

9 A. I am a clerk to the Honorable

10 Pauline Newman at the U.S. Court of Appeals for

11 the Federal Circuit.

12 Q. If you don't understand any questions

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

14 rephrase them. If you answer a question without

15 asking for clarification, we will assume you

16 understand the question. Do you understand

17 that?

18 A. Yes, I do.

19 Q. Do you understand you're under oath

20 today?

21 A. I do.

22 Q. As a judiciary employee, you're

23 required by law to cooperate with this

24 proceeding, including answering our questions

25 here today. Do you understand this?
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1 A. I do.

2 Q. How long have you been working with

3 Judge Newman?

4 A. Three years and a few months.

5 Q. We understand that you are her

6 clerk. Can you tell us about that role and what

7 your responsibilities are?

8 A. I am going to invoke my right under the

9 Fifth Amendment to avoid self-incrimination.

10 Q. You can't tell us what your

11 responsibilities are in your job?

12 A. I am --

13 : I am going to say asked

14 and answered. Objection.

15 : How does this have

16 anything to do with a criminal --

17 : This is not a criminal

18 case. It's a civil case.

19 : Exactly.

20 : You can invoke the

21 Fifth Amendment in a civil case.

22 : If there is some basis

23 for thinking they may be a crime involved --

24 : That's not the --

25 actually not the law.
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1 CHIEF JUDGE MOORE: You are refusing to

2 tell us what your responsibilities are for Judge

3 Newman?

4 THE WITNESS: I am invoking my

5 privilege under the Fifth Amendment to avoid

6 self-incrimination.

7 JUDGE PROST: Are you aware whether or

8 not there any's document in Personnel or in

9 chambers that would describe the duties of your

10 position?

11 : Objection. There's too

12 many people questioning the witness. There's

13 only one person who's allowed to question the

14 witness at one time.

15 CHIEF JUDGE MOORE: With all due

16 respect, that's not correct. Under our rules,

17 that's not correct. This is not a formal court

18 proceeding. This is a special investigation.

19 The committee is required to be three people,

20 and we are required to all participate. So you

21 are incorrect under the rules of the proceeding.

22 : All right. Well, can

23 we have one person questioning her at one time,

24 because you're asking and answering the same

25 question repeatedly.
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1 CHIEF JUDGE MOORE: No. You can lodge

2 your objection if you wish, but we are going to

3 proceed, because this is an interview by a

4 special committee under a judicial proceeding.

5 : All right. I object to

6 too many people questioning the witness, and

7 asked and answered.

8 JUDGE PROST: Maybe I was

9 misinterpreted. My question was not the same as

10 the one previously asked. I simply asked if

11 there was documentation she's aware of in our

12 Office of Personnel or in her chambers that

13 describes the duties of a law clerk in her

14 position.

15 THE WITNESS: I don't know.

16 CHIEF JUDGE MOORE: Do you manage or

17 otherwise review the work of other clerks in

18 chambers?

19 THE WITNESS: I, on advice of counsel,

20 am invoking my Fifth Amendment privilege to

21 avoid self-incrimination.

22 CHIEF JUDGE MOORE: How often do you

23 come into the building?

24 THE WITNESS: On advice of counsel, I

25 am invoking my Fifth Amendment privilege.
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1 CHIEF JUDGE MOORE: Do you ever

2 communicate 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 a

8 question of whether you communicate with the

9 person that you work for?

10 : Objection.

11 Argumentative. You can answer.

12 THE WITNESS: I am going to invoke my

13 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

18 that you report to?

19 THE WITNESS: I am going to invoke my

20 right against self-incrimination under the Fifth

21 Amendment.

22 CHIEF JUDGE MOORE: How often do you

23 see Judge Newman in person?

24 THE WITNESS: I am going to invoke my

25 Fifth Amendment right.
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1 CHIEF JUDGE MOORE: Do you ever meet

2 with her by Zoom?

3 THE WITNESS: I am going to invoke my

4 Fifth Amendment right.

5 CHIEF JUDGE MOORE: Do you ever talk to

6 her on the phone?

7 THE WITNESS: I am going to invoke my

8 Fifth Amendment.

9 CHIEF JUDGE MOORE: How are cases

10 assigned in your chambers?

11 THE WITNESS: I am going to invoke my

12 Fifth Amendment right on that.

13 CHIEF JUDGE MOORE: How many bench

14 memos would you estimate that you have drafted

15 for Judge Newman in the last year?

16 THE WITNESS: I am going to invoke my

17 Fifth Amendment.

18 CHIEF JUDGE MOORE: Do you draft

19 opinions for her?

20 THE WITNESS: I am going to invoke my

21 Fifth Amendment.

22 CHIEF JUDGE MOORE: Does Judge Newman

23 discuss cases you?

24 THE WITNESS: I am not going to answer

25 that.
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1 : Let her finish the

2 question. Let her finish.

3 CHIEF JUDGE MOORE: Does Judge Newman

4 discuss cases with you in advance of oral

5 argument?

6 THE WITNESS: I am going to invoke my

7 Fifth Amendment.

8 CHIEF JUDGE MOORE: Are you aware of

9 any instances in which Judge Newman has offered

10 an opinion with a disposition contrary to what

11 was voted on by judges?

12 THE COURT: I am going to invoke my

13 Fifth Amendment.

14 CHIEF JUDGE MOORE: Are you aware of

15 any instances in which Judge Newman has changed

16 her mind about the appropriate disposition of a

17 case that you have been working on?

18 THE WITNESS: I am going to invoke my

19 Fifth Amendment.

20 CHIEF JUDGE MOORE: Judge Newman has

21 seven current cases assigned to her. I am going

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

23 working on that case.

24 One of the cases is 

. Are you currently working on that case?
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1 THE WITNESS: Fifth Amendment.

2 : Say the whole sentence,

3 please.

4 THE WITNESS: On advice of counsel, I

5 invoke my Fifth Amendment right against

6 self-incrimination.

7 CHIEF JUDGE MOORE: Judge Newman has a

8 case . Are you

9 working on that case?

10 THE WITNESS: On advice of counsel, I'm

11 invoking my Fifth Amendment right against

12 self-incrimination.

13 CHIEF JUDGE MOORE: 

, a second case --

15 not the same one -- are you working on that one?

16 THE WITNESS: On advice of counsel, I

17 am invoking my Fifth Amendment right against

18 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 CHIEF JUDGE MOORE: Counsel, could you

25 explain why you're advising your client to
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1 refuse to answer the simplest of questions about

2 her job?

3 : That's privileged. My

4 communications with my client is privileged.

5 BY CHIEF JUDGE MOORE: Do you

6 understand, that this is a

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: I'm invoking my right

12 against self-incrimination under the Fifth

13 Amendment.

14 CHIEF JUDGE MOORE: Do you understand

15 that refusing to cooperate with this proceeding

16 could result in a misconduct charge because

17 you're obligated as a judicial employee to

18 participate?

19 : Objection. She is

20 participating.

21 You can answer.

22 THE WITNESS: Yes.

23 CHIEF JUDGE MOORE: Do you understand

24 that the rules to this proceeding suggest that

25 any employee who fails to participate could be
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1 terminated for misconduct?

2 : Objection.

3 Argumentative and threatening.

4 You can answer.

5 THE WITNESS: No.

6 CHIEF JUDGE MOORE: Is it your intent

7 to answer every question that I ask you by

8 invoking the Fifth Amendment?

9 THE WITNESS: No.

10 CHIEF JUDGE MOORE: Okay, then I'll

11 continue.

12 , are you

13 working on that case with Judge Newman's

14 chambers?

15 THE WITNESS: On advice of counsel, I'm

16 invoking my right under the Fifth Amendment to

17 avoid self-incrimination.

18 CHIEF JUDGE MOORE: 

. Are you working on that?

20 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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1 certain cases?

2 THE WITNESS: On advice of counsel, I

3 am going to invoke my Fifth Amendment right

4 against self-incrimination.

5 CHIEF JUDGE MOORE: 

. Are you working

7 on that case?

8 THE WITNESS: I am invoking my right

9 against self-incrimination under the Fifth

10 Amendment.

11 CHIEF JUDGE MOORE: 

. Are you working on

13 that case?

14 THE WITNESS: I am invoking my right

15 against self-incrimination under the Fifth

16 Amendment.

17 CHIEF JUDGE MOORE: 

. Are you working on that case?

19 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: On advice of counsel, I

25 am invoking my right against self-incrimination
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1 under the Fifth Amendment.

2 CHIEF JUDGE MOORE: On average, how

3 many drafts of an opinion does Judge Newman

4 receive before the opinion gets circulated to

5 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

10 possibly incriminate yourself by revealing how

11 many drafts of opinions are created?

12 : Objection.

13 Argumentative. You can answer.

14 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 advise

18 you to say that it was the Fifth Amendment and

19 that you shouldn't answer. She actually said

20 you could answer.

21 : She can answer however

22 she wants.

23 CHIEF JUDGE MOORE: But she started by

24 saying that, on advice of counsel, she was doing

25 it, but you didn't actually give her that
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1 advice. So is it your decision, then, that it's

2 a Fifth Amendment privilege that you would

3 incriminate yourself if you answered the

4 question?

5 : Objection.

6 Argumentative.

7 THE WITNESS: Yes.

8 CHIEF JUDGE MOORE: Does Judge Newman

9 have 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 health

17 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 not

24 invoke the Fifth Amendment with respect to your

25 duties, or did I misunderstand?
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1 THE WITNESS: You did not

2 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 some

6 indication about where that line is drawn to

7 save us all a lot of time?

8 THE WITNESS: Until you ask a question,

9 I can't answer that.

10 CHIEF JUDGE MOORE: Why don't we take a

11 five-minute break.

12 : And can I get your

13 card?

14 CHIEF JUDGE MOORE: I don't have a

15 card.

16 : Can I get name?

17 CHIEF JUDGE MOORE: Chief Judge Moore.

18 : Okay.

19 (A brief recess was taken.)

20 CHIEF JUDGE MOORE: Can we go back on

21 the record?

22 : Before we continue, I

23 just want to know who you are at the end of the

24 table. That's the one person that my client

25 doesn't know who you are.
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1 : , general

2 counsel.

3 : Okay.

4 JUDGE PROST: Let me just, in order to

5 expedite this for all of us, I guess I am going

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

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

8 need of some guidance in terms of getting you to

9 respond to questions we have.

10 So I guess are there -- I would like to

11 ask if there are any conditions, preconditions,

12 that would provide you comfort or a basis for

13 answering -- we've already had a number of

14 questions, you know, the type of questions

15 related to your job responsibilities and your

16 work. Are there any conditions that we could

17 provide that would permit you to respond?

18 THE WITNESS: I don't understand the

19 question. Can you rephrase that?

20 JUDGE PROST: I guess I don't know how

21 to restate it other than conditions,

22 preconditions. I mean, just off the top of my

23 head, this isn't apt necessarily, but just

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

25 you are -- would satisfy you? That's just
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1 really off the top of my head.

2 THE WITNESS: No, no.

3 JUDGE PROST: So there are no

4 conditions that you can think of, such as

5 immunity, that would allow you to answer the

6 questions?

7 THE WITNESS: For the questions already

8 asked, no.

9 JUDGE PROST: The type -- yeah, the --

10 okay.

11 And then I guess -- and this follows up

12 to my question earlier about can you give us

13 some guidance in order to expedite this in terms

14 of you -- I think you noted that there might be

15 questions 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 think

19 we have already asked questions related to your

20 job duties and responsibilities. Are there

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

22 answer or is that category off the table?

23 THE WITNESS: That category is off the

24 table.

25 JUDGE PROST: I'm trying to think
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1 generally what I --

2 : Can you tell us what

3 categories are on the table?

4 THE WITNESS: I am not going to give

5 you questions to ask.

6 : We're asking for topics

7 of questions.

8 THE WITNESS: I understand. I can't

9 give you topics either. I don't know what you

10 want to know. I've been given absolutely no

11 information what this is about. So I can't

12 anticipate what you might ask.

13 JUDGE PROST: And are you willing to

14 provide a further basis or information as to

15 your invocation of the privilege just so that

16 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 is

20 privileged and confidential. So anything

21 relating to her advice of counsel, I would tell

22 her not to answer that question.

23 JUDGE TARANTO: If we are in the

24 position of having to decide whether you're

25 violating a duty of cooperation, we would want
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1 to know whatever you could tell us about the

2 basis for invoking a privilege against

3 self-incrimination. Is there anything you can

4 tell us to --

5 THE WITNESS: Not at this time, do I

6 feel comfortable divulging what we've discussed

7 during --

8 JUDGE TARANTO: I didn't ask you about

9 what you discussed. I asked about what basis

10 might there be to help us think about the

11 question of duty of cooperation.

12 THE WITNESS: On advice of counsel, I

13 am not going to answer the question under the

14 Fifth Amendment right against self15 incrimination.

16 JUDGE TARANTO: And does the category

17 exclusion that you mentioned in reference to

18 work in chambers also apply more generally to

19 your dealings with Judge Newman?

20 : Objection. Confusing

21 question. I didn't understand.

22 JUDGE TARANTO: You answered the

23 question from Judge Prost that the category of

24 your work in chambers was -- I think your

25 language was "off the table." Does the same
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1 apply to a category of questions about your

2 dealings with Judge Newman?

3 A. Yes.

4 Q. Okay.

5 : Can you explain to us --

6 I'm asking the attorney -- when the Fifth

7 Amendment can be invoked?

8 : 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 the

12 basis on which it can be invoked.

13 : It can be invoked when

14 the nonparty has a risk of self-incrimination.

15 : A risk of self16 incrimination in a criminal proceeding

17 or evidence used against them. Is that correct?

18 : Evidence that can be

19 used against them.

20 : And can you try to

21 explain, on whatever basis you can, what

22 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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1 about -- any of the questions being answered

2 have anything to do with --

3 : Anything I would

4 respond to that would relate to my attorney5 client privilege, of advice that I have given to

6 my client.

7 CHIEF JUDGE MOORE: , before

8 today, were you aware of a potential judicial

9 disability proceeding involving Judge Newman?

10 THE WITNESS: Yes.

11 CHIEF JUDGE MOORE: How did you become

12 aware of it?

13 THE WITNESS: On advice of counsel, I

14 am going to invoke my Fifth Amendment right

15 against self-incrimination.

16 : Why did you answer the

17 first question and not this one?

18 THE WITNESS: On advice of counsel, I

19 am going to invoke my Fifth Amendment right

20 against self-incrimination.

21 CHIEF JUDGE MOORE: Have you read any

22 documents given to Judge Newman in this case?

23 THE WITNESS: On advice of counsel, I

24 am going to invoke the Fifth Amendment right

25 against self-incrimination.
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1 CHIEF JUDGE MOORE: Do you understand

2 that this judicial disability proceeding is

3 required to be confidential?

4 THE WITNESS: Yes.

5 CHIEF JUDGE MOORE: Do you understand

6 that if you were to share information about it

7 with others, that that would be a breach of the

8 rules for this proceeding?

9 THE WITNESS: Yes.

10 CHIEF JUDGE MOORE: If I tell you right

11 now that we will grant you immunity and not

12 prosecute you, not find it to constitute an act

13 of misconduct, whatever you tell us you have

14 shared or have not shared, would you be willing

15 to answer questions then?

16 THE WITNESS: No.

17 CHIEF JUDGE MOORE: Why?

18 THE WITNESS: On advice of counsel, I

19 am going to invoke my Fifth Amendment right

20 against self-incrimination.

21 CHIEF JUDGE MOORE: There is no law

22 that prevents you from sharing this information.

23 It is just rules of our Court that says you

24 can't share confidential information. So if

25 we're willing to grant you immunity, guarantee
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1 that you will not be found guilty of misconduct

2 for any acts of sharing that you may have

3 participated in, why can't you answer these

4 questions?

5 : Objection. That goes

6 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

9 am going to invoke my Fifth Amendment right

10 against self-incrimination.

11 CHIEF JUDGE MOORE: Have you spoken to

12 others about this proceeding?

13 THE WITNESS: On advice of counsel, I

14 am going to invoke my Fifth Amendment right

15 against self-incrimination.

16 : Can you explain the

17 basis for your right against invoking the

18 privilege?

19 THE WITNESS: By advice of counsel, I

20 am going to invoke my Fifth Amendment --

21 : Or can counsel explain

22 the reason?

23 : Not at this time, no.

24 : So there is no stated

25 basis for invoking the privilege?
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1 : There is a basis.

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

3 discussed with my client, so it's privileged and

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

5 CHIEF JUDGE MOORE: But, Counsel, you

6 are giving her advice not to answer questions in

7 an investigation about a judge. It doesn't have

8 anything to do with her.

9 So can you explain to us why you're

10 advising her not to answer these questions?

11 : Not at this time.

12 JUDGE PROST: When you say "not at this

13 time," does that suggest that if you had more

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

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

16 would provide it to us in writing at some other

17 time -- when you say not at this time, I just

18 want clarification, not at this --

19 : Not in this setting,

20 not given what -- she had exactly one day to

21 prepare for this interview with you guys, and,

22 therefore, she hasn't had time to prepare her

23 answers, and right now she needs to have the

24 time to -- to have her interview in a timely

25 manner, which she was not allowed to do.
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1 CHIEF JUDGE MOORE: Oh, so, please,

2 help me understand. So if we gave you a week,

3 would you be prepared to come back and answer

4 the questions at that time, because if you just

5 need time, we are certainly willing to give you

6 time.

7 : Nope. She would still

8 not answer the questions.

9 CHIEF JUDGE MOORE: But your stated

10 reason was that she didn't have time to prepare.

11 : Right, which she didn't

12 have time to prepare.

13 CHIEF JUDGE MOORE: But we are happy to

14 give you that time.

15 THE WITNESS: But even with that time,

16 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 understand

22 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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1 CHIEF JUDGE MOORE: You don't

2 understand that this proceeding is required to

3 be kept confidential?

4 THE WITNESS: Yes.

5 CHIEF JUDGE MOORE: You do understand

6 that it's required to be confidential?

7 THE WITNESS: Yes.

8 CHIEF JUDGE MOORE: And do you

9 understand that the requirement it be

10 confidential bars you from discussing it with

11 other people?

12 THE WITNESS: Yes.

13 CHIEF JUDGE MOORE: So you understand

14 that you can't discuss this proceeding with

15 other people.

16 THE WITNESS: Yes.

17 CHIEF JUDGE MOORE: Do you understand

18 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

22 of misconduct?

23 THE WITNESS: Are you telling me that

24 or are you asking me a question?

25 CHIEF JUDGE MOORE: Do you understand
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1 that it would be an act of misconduct to violate

2 the confidentiality?

3 THE WITNESS: I don't understand that.

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

5 will take -- I understand your words. I have no

6 knowledge of whether that would be considered an

7 act of misconduct or not.

8 CHIEF JUDGE MOORE: The rules regarding

9 this proceeding require that every judicial

10 employee maintain all aspects of it in

11 confidentiality. Did you know that?

12 THE WITNESS: I know that the statute

13 requires that it is a confidential proceeding.

14 That is all that I know.

15 CHIEF JUDGE MOORE: Are you familiar

16 with the rules regarding this proceeding?

17 THE WITNESS: No.

18 CHIEF JUDGE MOORE: Counsel, if you are

19 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

22 of this proceeding with is a breach of the

23 rules.

24 So going forward, it would be

25 considered an act of misconduct if you speak
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1 with people, any people, about this proceeding.

2 Do you now understand what I'm telling you?

3 THE WITNESS: I understand your words,

4 yes.

5 CHIEF JUDGE MOORE: Will you agree not

6 to speak to anyone about these proceedings?

7 THE WITNESS: On advice of counsel, I

8 am going to invoke my Fifth Amendment right to

9 avoid self-incrimination.

10 CHIEF JUDGE MOORE: Does that mean you

11 are not --

12 THE WITNESS: Can we take a break,

13 please?

14 CHIEF JUDGE MOORE: Sure.

15 (A brief recess was taken.)

16 : If you could ask your

17 last question.

18 CHIEF JUDGE MOORE: Will you agree not

19 to speak to anyone about these proceedings?

20 THE WITNESS: Yes.

21 JUDGE TARANTO: I want to ask one -- at

22 least one followup question on this categories

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

24 two that you are -- that you view as off the

25 table for present purposes. One had been work
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1 in chambers. I think I asked you a question, to

2 which you gave the same answer, off the table,

3 about dealings with Judge Newman.

4 I'm going to ask the same question

5 about your perceptions of Judge Newman and her

6 ability 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 JUDGE TARANTO: For that category as

11 well?

12 THE WITNESS: Yes.

13 CHIEF JUDGE MOORE: Just to make sure

14 that we have a clear record for future purposes,

15 when you agreed that you will not speak to

16 anyone about these proceedings, that includes

17 people in chambers, people outside of the Court.

18 Do you understand that?

19 THE WITNESS: Yes.

20 CHIEF JUDGE MOORE: That includes the

21 fact of a disability proceeding as well as this

22 interview. Do you agree with that?

23 THE WITNESS: Yes.

24 CHIEF JUDGE MOORE: So you will not

25 disclose with anyone or discuss with anyone this
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1 interview, correct?

2 THE WITNESS: Yes.

3 CHIEF JUDGE MOORE: Has Judge Newman

4 instructed you in any way about how to testify

5 today?

6 THE WITNESS: On advice of counsel, I

7 would like to invoke my Fifth Amendment right

8 against self-incrimination.

9 CHIEF JUDGE MOORE: Has Judge Newman

10 asked you or encouraged you to talk about these

11 proceedings with other people?

12 THE WITNESS: On advice of counsel, I

13 am going to invoke my Fifth Amendment right

14 against self-incrimination.

15 CHIEF JUDGE MOORE: Do you understand

16 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: Yes.

22 CHIEF JUDGE MOORE: Have you ever

23 stolen money from the Court?

24 : Objection.

25 Argumentative. You can answer.
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1 THE WITNESS: No.

2 CHIEF JUDGE MOORE: Do you ever perform

3 any legal work related to any case here at the

4 Court?

5 THE WITNESS: I don't understand your

6 question.

7 CHIEF JUDGE MOORE: Do you ever work on

8 any case here at the Court?

9 THE WITNESS: Yes.

10 CHIEF JUDGE MOORE: Do you work on any

11 currently pending cases here at the Court?

12 THE WITNESS: On advice of counsel, I

13 am going to invoke my Fifth Amendment right

14 against self-incrimination.

15 CHIEF JUDGE MOORE: If you aren't

16 working on any pending cases in front of the

17 Court, what are you doing?

18 THE WITNESS: On advice of counsel, I

19 am going to invoke my Fifth Amendment right

20 against self-incrimination.

21 : Have you ever discussed

22 as a matter with anybody else, outside the

23 Court, the judicial proceedings, judicial

24 disability proceedings?

25 THE WITNESS: On advice of counsel, I
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1 am going to invoke my Fifth Amendment right

2 against self-incrimination.

3 CHIEF JUDGE MOORE: Have you discussed

4 the judicial proceedings in this matter with

5 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 right

9 against self-incrimination.

10 JUDGE TARANTO: And just circling back

11 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 then

14 what I understood that Chief Judge Moore asked,

15 if we gave you additional time that you

16 considered reasonable, if that would change your

17 responses you had to the questions that have

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

19 but I just want to confirm that.

20 THE WITNESS: It would not.

21 JUDGE TARANTO: It would not change.

22 So it's nothing that -- no matter how much time

23 you had, this would remain the same.

24 THE WITNESS: Yes.

25 CHIEF JUDGE MOORE: Can you give us
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1 some indication of why you believe that any of

2 these questions could cause you to incriminate

3 yourself?

4 : Objection. Calls for

5 privileged communication.

6 CHIEF JUDGE MOORE: No. I'm asking her

7 for her belief, not anything about any

8 communication.

9 THE WITNESS: On advice of counsel, I

10 am going to invoke my Fifth Amendment right

11 against self-incrimination.

12 CHIEF JUDGE MOORE: Can you give us the

13 names of your co-clerks in chambers?

14 THE WITNESS: 

16 CHIEF JUDGE MOORE: And how long have

17 you worked with each of them?

18 THE WITNESS: is, I believe,

19 two and a half years, roughly. is

20 six months. is three, four

21 months.

22 CHIEF JUDGE MOORE: Can you remember an

23 instance where I came down to chambers and spoke

24 to all of you?

25 THE WITNESS: Yes.
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1 CHIEF JUDGE MOORE: Do you remember

2 that that instance involved Judge Newman

3 disclosing confidential or sensitive 

4 information ?

5 THE WITNESS: On advice of counsel, I

6 am going to invoke my Fifth Amendment right

7 against self-incrimination.

8 CHIEF JUDGE MOORE: Did Judge Newman

9 disclose confidential or sensitive 

10 information ?

11 THE WITNESS: On advice of counsel, I

12 am going to invoke my Fifth Amendment right

13 against self-incrimination.

14 CHIEF JUDGE MOORE: After or at that

15 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: I do.

19 CHIEF JUDGE MOORE: Did you agree?

20 THE WITNESS: Yes.

21 CHIEF JUDGE MOORE: Have you discussed

22 it since then?

23 THE WITNESS: No.

24 CHIEF JUDGE MOORE: Do you ever work

25 with ?
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1 THE WITNESS: I do.

2 CHIEF JUDGE MOORE: Can you tell me

3 what his role in chambers is?

4 THE WITNESS: On advice of counsel, I

5 am going to invoke my Fifth Amendment right

6 against self-incrimination.

7 : Can you explain a basis

8 for invoking the privilege?

9 : Again, the privilege is

10 invoked because of the communications I had with

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

12 CHIEF JUDGE MOORE: Will you provide us

13 with a basis for believing that these kinds of

14 questions could cause you to incriminate

15 yourself?

16 THE WITNESS: Not at this time.

17 CHIEF JUDGE MOORE: 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 that

23 would be appropriate or acceptable to you or

24 that you could do it?

25 : I'm not sure. I don't
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1 know.

2 : Can you do it in a week?

3 : No. I don't know. I'm

4 not sure.

5 : If you were to do it,

6 will you provide a written response?

7 : It depends on who you

8 order to do what.

9 : The basis for invoking

10 the privilege to these questions.

11 : At the moment,

12 everything related to why my client is invoking

13 the privilege is privileged and confidential,

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

15 privilege without violating attorney-client

16 privilege.

17 CHIEF JUDGE MOORE: , do you

18 understand that we could grant you immunity from

19 any sort of misconduct proceeding in this

20 context?

21 THE WITNESS: No.

22 CHIEF JUDGE MOORE: If we did grant you

23 immunity from any sort of misconduct proceeding,

24 would you be willing to answer all of the

25 questions that we've asked today?
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1 THE WITNESS: No.

2 CHIEF JUDGE MOORE: Are there any of

3 the questions we've asked today that you would

4 be willing to answer?

5 THE WITNESS: I would continue to

6 invoke my Fifth Amendment right for the

7 questions 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

12 question?

13 THE WITNESS: No.

14 : When you say "no," you

15 mean you still won't answer the questions?

16 THE WITNESS: I will not answer those

17 questions.

18 : So my understanding is

19 under no circumstances will you answer

20 questions. Is that fair to say?

21 THE WITNESS: For those questions that

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

23 : Okay, thank you.

24 JUDGE TARANTO: And let me just, I

25 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 THE WITNESS: I don't understand your

4 question. Could you rephrase it?

5 JUDGE TARANTO: Sure.

6 Self-incrimination is a concern about criminal

7 prosecution. If the sovereign United States

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 the

11 same, would you still invoke your Fifth

12 Amendment privilege?

13 THE WITNESS: Yes.

14 CHIEF JUDGE MOORE: 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 already

18 asked?

19 THE WITNESS: I can't speculate.

20 CHIEF JUDGE MOORE: I'm not asking you

21 to speculate. I'm saying what could we do to

22 make this a cooperative proceeding. That's all

23 I'm seeking.

24 THE WITNESS: I am cooperating. I'm

25 here.
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1 : Well, you're not

2 answering --

3 THE WITNESS: I'm answering those

4 questions that I can answer.

5 CHIEF JUDGE MOORE: But we asked some

6 very basic questions about your duties in

7 chambers or whether you've drafted opinions or

8 whether you've written a bench memo, and these

9 are typically jobs that all law clerks do, and

10 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

14 communications with me, and she cannot answer

15 related to anything that we have discussed, but

16 you can answer her question.

17 THE WITNESS: There was no question.

18 CHIEF JUDGE MOORE: Actually, it was,

19 why? Why are you refusing to answer any

20 questions about your job duties in chambers?

21 THE WITNESS: On advice of counsel, I

22 am going to invoke my Fifth Amendment right

23 against self-incrimination.

24 JUDGE PROST: Is there a telework

25 policy in your chambers?
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1 THE WITNESS: On advice of counsel, I

2 am going to invoke my Fifth Amendment right

3 against self-incrimination.

4 CHIEF JUDGE MOORE: How many hours a

5 week do you work?

6 THE WITNESS: Forty to 100.

7 CHIEF JUDGE MOORE: And is that 40 to

8 100 for work you do for judicial matters here at

9 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 right

16 against self-incrimination.

17 CHIEF JUDGE MOORE: You've indicated

18 that you work 40 to 100 hours a week for

19 judicial matters here at the Court. Can you

20 give us any examples of work you've done in the

21 last week?

22 THE WITNESS: On advice of counsel, I

23 am going to invoke my Fifth Amendment right

24 under self-incrimination.

25 CHIEF JUDGE MOORE: Can you give us any
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1 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 right

4 against self-incrimination.

5 CHIEF JUDGE MOORE: What do you spend

6 the 40 to 100 hours a weeks doing?

7 THE WITNESS: On advice of counsel, I

8 am going to invoke my Fifth Amendment right

9 against self-incrimination.

10 JUDGE PROST: Were you hired as a term

11 law clerk or did the position convert after a

12 certain period of time?

13 THE WITNESS: It converted.

14 JUDGE PROST: Do you recall

15 approximately when?

16 THE WITNESS: At about two years,

17 roughly.

18 JUDGE PROST: And that's two years --

19 when did you start your employment here?

20 THE WITNESS: Early December of 2019,

21 and it converted in December -- November,

22 December of 2021.

23 CHIEF JUDGE MOORE: Did you tell anyone

24 that you were subpoenaed to appear here today?

25 THE WITNESS: Yes.
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1 CHIEF JUDGE MOORE: Who did you tell?

2 THE WITNESS: On advice of counsel, I

3 am going to invoke my Fifth Amendment right

4 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 not

8 delete any emails in your court account. Do you

9 understand that instruction?

10 THE WITNESS: Yes.

11 CHIEF JUDGE MOORE: Will you agree to

12 comply with that instruction?

13 THE WITNESS: Yes.

14 CHIEF JUDGE MOORE: , 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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1 CHIEF JUDGE MOORE: This concludes the

2 proceedings.

3 (Whereupon, at 10:15 a.m., the

4 deposition 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 by

7 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 the

10 parties to the action in which these proceedings

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

12 relative or employee of any attorney or counsel

13 employed by the parties hereto, nor financially

14 or otherwise interested in the outcome of the

15 action.

16

17

18

19 SUSANNE BERGLING, RMR-CRR-CLR

20

21

22

23

24

25
AFFIDAVIT OF 

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 my 

recollection. 

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 filing

systems (electronic and paper); preparing orders, notices, and opinions for filing

in the court's electronic and case management filing system; arranging meetings

and conference agendas; providing assistance for law clerk orientation and

training; providing chambers staff with assistance on the court's automated

computer 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 other

chambers that were circulated for vote; incorporating Judge Newman's edits;

reviewing legal documents assigned by Judge Newman for completeness and

accuracy; 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 a

month 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 administration

of chambers, including Judge Newman's daily calendar. I also participated on

1 

[Affidavit 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 back

to 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 across

chambers 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 down

because 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 were

placed 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 and

would 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 primary

care provider.

10.I have on multiple occasion seen Judge Newman have trouble recalling events

and information. In my experience with Judge Newman, her memory loss and

2 
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 for

the 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.

12. On Friday March I, 2023, Judge Newman provided final edits of her dissent in

for 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

discussing (-PN, _), in which the 

, Judge 

Newman stated that the case reminded her of another matter, but she could not 

recall the case at all. I wrote ' " on a notepad because I was so 

concerned that-had been issued the day earlier and she couldn't remember. 

I spoke with and about this after Judge Newman 

left. concurred that Judge Newman did not recall the opinion 

that was issued a day earlier. 11111 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. 

13. On our daily calls, I often needed to repeat information about the status of cases

and opinions that were waiting for vote. In response to me bringing up cases

that 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 response

3 
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 phone

and 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 at

least 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 thought

that Judge Newman was not able to keep up with the workload and that the

statements about computer issues could have been a cover for her inability to

keep 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 other

panel members for vote on the date of submission. I do not recall any case in

which 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's

chambers. 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 my

requests to have a clerk assist with the preparation of a draft.

16.Frequently, I would encourage Judge Newman to assign pre-submitted cases to

other 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. This 

appeared 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 not 

provide 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 the 

draft. 

18.I was asked on another occasion to assist Judge Newman in drafting a submitted

op1mon in . I was instructed by Judge Newman on multiple

occasions during our Monday weekly Zoom chambers meetings not to send the

draft 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 I, 2023. That case was submitted on February ■, 2023. When I left

chambers, I was still waiting her approval to send the draft.

19.In my experience, similar requests from law clerks were repeatedly denied by

Judge 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 January ■, 2023 (within 11 days of the date of

submission). However, as of April I, 2023, Judge Newman had not yet approved

or asked me to incorporate any changes to the draft. Her standard practice was

to 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

I, 2023. The amount of time between receiving a draft from a law clerk and

Judge Newman turning to the drafts to make edits in-was typical of the

delay in reviewing first draft opinions.

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 were

returned to the law clerks. For instance, as of April I, 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.

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 each

chambers over other matters as a proven means of facilitating the work of the

5 
court" and therefore "Judges shall vote on circulating precedential and 

nonprecedential opinions within five working days of receipt, or explain to the 

authoring 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 at 

some 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 on

oral argument days and special events. Judge Newman was driven to and from

the court by her -law clerk. It is my understanding that this law clerk

would also drive Judge Newman to medical appointments and for special events

and do her grocery shopping. The clerk would also help bring case materials

back to Judge Newman's home where Judge Newman primarily worked. When

I was present at Judge Newman's home, I saw folders and papers spread around

and 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 case

materials 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 case

materials she had at her home office and now was unable to do so. She used to

have everything prepared for oral argument. However, for the last three

months, 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 same

materials from the law clerks to ensure she was prepared for argument. This

was 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

Newman because disclosing to

her staff seemed entirely inappropriate and unnecessary, but she did not seem

to 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 with

me 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 to 

chambers' 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 or

requests 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 this

with anyone in chambers to protect Judge Newman.

28.Judge Newman even sent me a message along the lines of "Great, I'll be in those

days," 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 first

question 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: "Are

you 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 her

that my approval for leave needed to be confirmed immediately or I would not

7 
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 my 

annual 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 and

filed 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, my

workstation would be moved outside of chambers. That same day, my phone and

computer 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; and

reaching 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 was

completely 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 call

as 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 the

alternative 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 to

chambers 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 was

going to terminate me immediately unless I dropped my request for an

alternative 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 

law clerk 

in 

was 

Judge Newman's 

repeatedly contacting 

chambers. 

me off-business 

I told Judge 

hours 

Newman 

in the 

that 

middle 

her -

of the

night 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 to

take 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 but

that I needed her to refrain from texting and calling me in the middle of night

for her personal and work-related requests. Despite my requests to stop, the

clerk 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 that

my request for help would be confidential under the Plan. However, I am aware

that after contacting the Director of Workplace Relations, Judge Newman

emailed at least 95 people revealing all the details that I had disclosed in

confidence, including my name as the complainant.

37.I would like to say that l love, revere, and admire Judge Newman personally and

professionally for all her accomplishments and who she is as a person, which

makes the last few months so much more difficult. The thing that causes me the

greatest 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 emotional

9 
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 of Ay;ri I 

District of Columbia 

meon 

Ing stacement 

10 
AFFIDAVIT OF 

1. My name is and I work in the Information Technology Office (ITO) 

of the United States Court of Appeals for the Federal Circuit. My current title is 

Acting HelpDesk Supervisor. I have been employed in ITO since 2007. My 

responsibilities currently include supervising the work of ITO helpdesk team 

members. The facts in this affidavit come from my own personal observations to 

the 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 that 

afternoon 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

-offered �oing to get her lawyers to investigate why her email was being "hacked."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 other

folders 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

Newman's laced the call on speaker so that I could 

also listen. man's phones were being forwarded 

to Judge N told that we would 

investigate the issue and the and I then checked the Cisco Call 

Manager, which indicated that her phones were not being forwarded. 

5. A few minutes later, I answered a call from and Judge Newman. They

said 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 make

sm·e her phone was working correctly and that she could hear the calls properly.

I recall Judge Newman then asking why was on her line. I informed

Judge Newman that the system was always set up to allow her paralegal to

1 

[Affidavit 2]
,I 

answer 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 not

taking 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 phone

situation 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 and

claimed 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 part

of the operating system. She non-1·esponsively said that there was a lot of other

stuff going on and that "It's all going to come out in a terrible uproar." Once we

were 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. While

the 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 be

resolved 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 that

the network disconnected her based on inactivity. She seems agitated and

paranoid, 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 more

than 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 a

file or email or Judge Newman forgetting the steps to remotely access into the

court's computer network. These are things that Judge Newman has done for

years, 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 to

remember 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 our 

recent 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 the 

simple process for using the application that she used to have no problem handling 

on 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 the

machine.

3 
12. 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. 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. 

4 

ANNETTE 8. YOUNO NOTARY PUBLIC DISTRICT OF COLUMBIA MyCommisslon Expires Ncwember 14, 2026

4. Judge Newman seemed to have a particularly difficult time grasping the fact

that 

could 

the 

receive 

Chief 

her 

Judge 

retirement 

had agreed 

annuity 

to seek 

and 

approval 

collect 

of 

an 

an 

unreduced 

offset waiver 

salary. I 

so thatinformed 

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 of 

loyalty to me, to yield her federal pension in exchange for an uncertain few weeks or 

days 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 offset 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 for 

her 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 that 

she 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 her 

annuity 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 a

vacancy announcement for the permanent position. On April 27, 2023, I sent Judge

Newman a draft vacancy announcement and informed her that I would post the

announcement 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 the

Administrative Office's website for a judicial assistant position at the District of

Columbia 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 the

announcement was no longer available. I emailed Judge Newman back at 2:04pm, to

let 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 than 

a paralegal and provided a draft of an updated vacancy announcement with the 

appropriate 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'' and 

that if she "missed receipt of notice of such approval, please resend." I responded by 

reminding 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 p d correct. 

Sworn to and subscribed before me this J.,31'7l 

day of m� 1 ;).{)p

s· ature of Nota11al Off,c (o Seal 

(J6'?f 4/.JtA::iru\1:?i:: yl'ltle of OffiCG 

My commission Expires: �. / 0 "> D / :x)J.b

3 
From: 

To: Judge Pautine Newman 

Subject: RE: contract services 

Date: 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 the 

normal, 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 regular 

deposit 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 iPhone 

On 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 to 

submit 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 to 

seek exemption from the salary off-set. I have completed the form with as 

much 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 she 

would be paid for days worked. I would like to see the paperwork implementing this 

arrangement, including the pay rate. 

Such paperwork should assure that her pension is unaffected. 

Sent from my iPhone 

On 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 completing 

the 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 return

Thank 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 

possible return, I notified you that 

regardingChief 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 Office

allows for courts to seek approval for an exemption

to this regulation under certain exceptional

circumstances. I am happy and ready to assist with

lllllillliiiii

Human Resources

eals for the Federal Circuit 

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 to 

me, 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 successive 

month 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 a 

temporary staffing agency and we 

contract with the agency for her services. 

Otherwise, 

directly would 

contracting 

be considered 

witha 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: https: I /jnet.ao,dcn /policyguidance/guide-judiciary po!icy/vo!ume14-procurement/ch-5-special-categoriesprocurements# s 10. 

If-is working with a temporary 

staffing agency, please let me know and I 

can work with 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 

To: 

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 iPhone 

On 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 the 

vacancy announcement for 

your chambers paralegal. 

Please review the 

announcement and let me 

know if you have any 
changes. Once the 

announcement is finalized, I 

will post it to the court 

website, the JNet, and to 

USCourts.gov. Please let me 

know how you prefer to 

receive the application 

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 the same this 

time, if you like. 

Additionally, please let me 

-regarding 

know if I may reach out to 

her

temporary return. Because

she will be coming back to the

court as a re-employed

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 the

salary 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 

U.S. Court of Appeals for the 

Federal 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 to a Federal 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 a

contractor if she is working with a temporary staffing agency and we contract with the

agency for her services. Otherwise, contracting with-directly 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 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-judiciarypolicy/volume-14-procurement/ch-5-speci;1l-c;1tegories-procure1nents#S lO.

I�is working with a temporary staffing agency, please let me know and I can work

with 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 iPhone 

On Apr 27, 2023, at 10:25 AM, 
Judge Newman, 

In light of Chief}udge Moore's email this morning, I am sending along the 

draft of the vacancy announcement for your chambers paralegal. Please 

review the announcement and let me know if you have any changes. Once 

the announcement is finalized, I will post it to the court website, the JNet, and 

to USCourts.gov. Please let me know how you prefer to receive the 

application 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 the 

same 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 the 

salary 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 to a federal Judge /Newman 2023}.doc 

Judge Newman,

Just to be sure that I clearly understand, you want to recruitment to be for a Judicial Assistant

and 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 announcement

that 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 me

know when it is posted.

PN

Court 

Na me/Organization:

Overview of the

Position: 

District of Columbia Circuit Court of Appeals

The Judicial Assistant provides administrative, case-related, and 

management support to a federal circuit judge and is responsible for all

day-to-day operations of the judge's chambers. The Judicial Assistant 

exemplifies and fosters a positive approach of professionalism, teamwork,

mutual respect, and dedication to public service. The Judicial Assistant is 

also 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 strong 

organizational, administrative, and management skills. enjoys working in a

challenging and collaborative environment on a wide variety of tasks. is a 
creative thinker and problem-solver. maintains a calm demeanor under 

pressure, and upholds the highest level of confidentiality. The position will 

not be available sooner than July 2023. 

Location: Washington, DC 

...,_ 

Opening and 03101/2023 - Open Until Filled 

Closing Dates: 

Appointment Type: Permanent 

Classification Grade 5 - Grade 11 

Level/Grade: 

Salary: S42,870 - SI 02, 166 

Announcement USCA-23-05 

Number: 

LINK TO JOB ANNOUNCEMENT 
-------------------

From: 

Sent: 

To: 

Cc: 

Subject: 

Attachments: 

Hi Judge Newman, 

Tuesday, May 9, 2023 2:38 PM 

Judge Pauline Newman 

Chief Judge Kimberly A. Moore 

RE: HR question 

Support services; Paralegal Recruitment 

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 an 

email 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 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 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 and 

approve 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 of 

that opening. If I missed receipt of notice of such approval, please resend. 

PN 

Sent from my iPhone 

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

Chief Judge Moore, 

1 
I have been in communication with Judge Newman regarding both the temporary rehire of 

and 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 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 regardin�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 a follow-up email from 

her. 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 both 

matters. 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 of

which you approved for a period of up to 90 days, with the possibility

of an extension. I also notified her of your approval to seek a waiver of the salary

offset 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 and

stated that I was not to contac�until the recruitment process begins for a

permanent replacement for her }A/paralegal vacancy.

2. 4:09 PM: l sent a follow-up e-mail� Newman shortly after our call to restate

3. 4:53 

the approval 

PM: Judge 

to 

Newman 

temporarily 

responded 

rehir�

by email indicating 

and to again offer 

that 

to 

she 

reach 

requires 

out to

a

-

permanent as well as �ary solution to her judicial needs. No response to my

inquiry 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 vote

prohibiting her fr�� any permanent staff and again asked for permission to

move forward wit�.

2. 3:55 PM: 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 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

chambers 

sent an email 

paralegal. 

to Judge 

I indicated 

Newman containing a 

that I would 

draft 

get the 

vacancy 

announcement 

announc�

posted as soon

as she approved it I also asked if I could reach out to-to begin the process of

her 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 to

contracem 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 reemployed

annuitant 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 thatou a eed to seek approval from the Director of the AO to waive the salary 

offset fo I 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

form: 1) whethe would be full-time or part-time; 2) appro�ow

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

to 

court 

work 

and 

"as 

what 

the need 

would 

arises" 

happen 

and 

to 

tha

her 

�

pen�

is to 

e 

be 

indicated 

paid for days 

that she 

worked. 

wants

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 an 

intermittent basis. I explained the process for reporting hours to HR. I also 

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

10.

and 

9:35 

requirements 

PM: Judge Newman 

for a JA 

responded 

and asked 

inquiring 

her to review 

again 

for 

whether

postin

-L..-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 for

hours worked at the court, whethe�would be eligible for travel

reimbursement, and if there was any additional information the judge needed to

know.

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 her

annuity 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 and 

benefits 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 the 

answers in writing and said that she would send me an email with all of her 

questions. 

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 for 

judicial 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 come 

-(a 

back. As I understand it, you contacted the AO to determine how to bring back 

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�back 

to Judge Newman on April 24 including the fact that-will be bro�k 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 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 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 

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 will need your credentials for 

Infoweb, 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, 

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 iPhone 

On May 8, 2023, at 3:09 PM, 

wrote: 

6 
Good afternoon, 

This email is a friendly reminder that the Governance 

and Education Travel Report (fka Non-Case Related 

Travel Report) is due May 15. This report must be 

completed 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 for ntto wJtb the Judoes· Goyemance and Education Trayet ReD.Q.!11ng..JY. 

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 is 

a reportable item, according to The Guide to Judiciary 

Policy. Please see the rule below and refer to your 

judge. 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

W ashin 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) repeated

assertions that I was withholding secretarial services from her, (4)

multiple allegations about the "illicit removal" of equipment from her

chambers, (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 me

even aftei· I explained my lack of involvement with aspects of her

complaints to me. Third, in an effort to still provide Judge Newman with

clarification, I found it necessary to take a firm tone of a nature I have

never 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 the

Federal Circuit and in other federal courts since I began working in the

federal judiciary in 2004.

6. From these perseverated accusations against me by Judge Newman, I

experienced emotional stress and discomfort, including loss of sleep and

Page 2 of 11 
heightened anxiety upon receipt of an email message from her and then 

attempting to craft a suitable response to her. In addition to my own 

encounters with Judge Newman, I also provided support and 

encouragement to other membe1·s of court staff who were experiencing 

similar difficult interactions with Judge Newman. As part of my 

conversations with members of court staff and the difficulties they were 

experiencing with her, I requested that staff attempt to engage in 

conversations 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, The

memorandum included, among other things, details about the location of

her 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, to

which 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 with

getting 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 from

me and the Clerk's Office "would result in the providing of expanded

services and support beyond my existing authority" to provide services to

any 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 with

the 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 in

a follow-up email shortly thereafter, that "Judge Newman has continued

and continues to have full access to her chambers materials and the

ability 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 my 

chambers, unlike all the other judges." Exhibit E. 

14. I replied all to Judge Newman and her counsel on April 27 recounting the

same details I had previously explained to her by email, including my

request that she address her staffing concerns with either the Chief Judge

or 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 of

staff 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 letters

from Mark Chenoweth of the New Civil Liberties Alliance. The letters

were 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 letters

to the Special Committee.

Page 5 of 11 
18. Because the letters did not include either an entry of appearance by

counsel or any notation reflecting that Judge Newman was aware of the

entry 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 to

me, a member of the court. Otherwise, why haven't you assisted me in

your role as Clerk? I need secretarial services, that you continue to

withhold." Exhibit B.

21. I responded that her request for additional support was previously

addressed by Chief Judge Moore and clarified that she is receiving the

same level of service being provided to every other judge. To underscore

my 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] response

on 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 to

Judge Newman on April 24, 2023.

24. Due to the sensitive nature of this matter, I continue to serve as the case

manager in this case and have coordinated an agreement with Judge

Newman's counsel for them to send electronic filings to the court through

me and for me to serve them electronically with filings from the court.

Judge Newman Equipment and File Access 

25. On April 24, 2023, Judge Newman emailed me with the subject line

"Where is our computer?" and alleging I directed its removal from her

chambers. 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" that

computers are assigned to individuals and not to a specific office and that

the 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 his 

transfer 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, for

it contains important records." Judge Newman again repeated the

allegation that the computer was an ''illicit removal." Exhibit D. Because

of 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 to

address her access to her chambers records. In addition to my repetition

of the same facts to her, I added that both I and a member of the IT staff

personally inspected s desktop and confirmed that he had "no 

Page 8 of 11 
remaining documents or records from his time in your chambers or 

records 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 prior

assistant left her chambers, that desktop was :removed and all files were

transferred to her network drive. A new desktop was issued to her

chambers when started two years prior.

33. Again, I noted that "[f]rom my extensive and r,epeated review of this

situation ... 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 was

stored 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 success

with Judge Newman. I called him to discuss what happened. On the call

was audibly upset and bothered a.nd he said it was due to 

Page 9 of 11 
how Judge Newman behaved and treated him when he was attempting to 

help 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 of experience and Judge Newman's request for

Clerk's Office assistance, the next morning I emailed Judge Newman my

fifth attempt to explain the cil·cumstances of the compute1· and her

chambers records. Taking a m01·e assertive tone than in my past

messages, I criticized Judge Newman for being "agitated, belligerent, and

demonstratively angry" with and 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 a

more respectful approach toward any future staff that attempt to assist in

chambers. 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 my

computer, 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 teach

her 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 my

several prior attempts to explain things to her, I declined to respond.

DATED this 3/sr day of_..;.ll�Nj--_, ]d2/2 

Sworn to and subscribed before me this day of_� � ........ �-- 202..:::>

Notary Public

Page 11 of 11
From: 

Sent: 

To: 

Judge Pauline Newman 

Friday, April 21, 2023 10:39 

EXHIBIT 

Subject: Re: Chambers 801 Transition Memo 4.20.23 

That is secretarial work, not law clerk work. My law clerks are performing other as assignments. 

Sent from my iPhone 

On Apr 21, 2023, at 10:04 AM, wrote: 

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 the 

electronic version. 

From: Judge Pauline Newman 

Sent: Frida A ril 21, 2023 9:5 

To: 

lerk's Office 

s for the Federal Circuit 

Subject: Re: Chambers 801 Transition Memo 4.20.23 

I www.cafc.uscourts.gov 

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 iPhone 

1 
On Apr 21, 2023, at 8:50 AM 

Judge Newman, 

You can email it to 

it into the system for processing . 

.. 

�. Clerk's Office 

<lmage00l.png> U.S. Court of Appeals for the Federal Circuit

From: Judge Pauline Newman 

Sent: Frida , A ril 21, 2023 0:36 

To: 

Subject: Re: Chambers 801 Transition Memo 4.20.23 

wrote: 

nd we will upload 

I www.cafc.uscourts.gov

- 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 am 

transmitting 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

I www.cafc.uscourts.gov

2
From: 

Sent: 

To: �

Judge Pauline Newman

5, 2023 0: 10

EXHIBIT 

B 

Subject: Re: Clarification of Counsel Submission

-• I note your response on behalf of Judge Moore. What is your authoriz:ation?

Judge Newman

Sent from my iPhone

On Apr 24, 2023, at 10:39 AM, Ill wrote:

Judge Newman, 

If they are appearing as your counsel, we need them to e,nter an appearance in the 

matter 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 your 

request by email last week. The Clerk's Office remains available to provide the 

service I originally offered to you-assistance with trans:mitting to the Clerk's Office 

a final opinion for docketing and issuance-that we provide to all the judges of this 

cou1't. To be clear, I am not seeking to act adverse to you and remain available to 

provide 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 administrative 

and 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 and 

authority 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, a 

member 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 

On Apr 24, 2023, at 7:28 AM, wrote: 

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, 

�k, Clerk's Office 

<image00l.png> U.S. Court of Appeals for the Federal Circuit

From: Judge Pauline New 

Se 

To: 

Subject: Re: Clarification of Counsel Submission 

To 

I www.cafc.uscourts.gov

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 from 

Mark Chenoweth of the New Civil Liberties: Alliance in 

which he states he is your counsel and filing the letter on 

your behalf. The letter was neither accompanied by an 

entry 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 this 

inquiry, the committee asked me to clarify with you 

whether M1·. Chenoweth is appearing as your counsel in 

this 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 your 

behalf. 

Regards, 

erk's Office 

<image00l.png> for the Federal Circuit 

-I www.cafc.uscourts.gov

3 
From: 

Sent: 

To: �

Judge Pauline Newman

25, 2023 11:42

EXHIBIT 

C 

Subject: �ur computer?

( 

Follow Up Flag: Follow up

Flag Status: Completed

The disruption to my chambers, the loss of my time, is irremediable. And inexcusable.

Judge Newman

Sent from my iPhone

On Apr 25, 2023, at 10:52 AM,

Judge Newman,

rote:

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 have

not made any adjustments to your individual desktop. If you need us to provide you

with 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 dispute

matter, of which I am not a party or participant. The subsequent movement of the

desktop 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 and

had. 

they will 

Because 

be replacing 

the removed 

it today 

device 

with 

did 

the 

not 

same 

have 

access 

your 

and 

chambers 

setup that

records _on it as those

items are stored on your chambers network drive, at no point did you or your

chambers 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.

lllliil1lly,

I hope this further clarifies this situation for you.
�. 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 my 

chambers, the loss of my valuable time, awaits explanation. 

Judge Newman 

Sent from my iPhone 

On Apr 25, 2023, at 9:46 AM, �rote: 

Judge Newman, 

My apologies for the confusion here about the staff movements and 

equipment. I spoke with IT staff this morning and a computer will be 

returned to the JA desk in your chambers, which will have full access 

to 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, or 

interfered with access by either you or your chamlbers staff to these 

materials. 

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 is 

what happened last week when ... elocated to the fourth floor. I 

spoke with-this morning and confirmed that during his time in 

your chambers he never saved any chambers infOJcmation on the 

desktop but always saved everything-your chambers memos, drafts, 

forms, etc.--on to your chambers network drive. ]Moreover, I confirmed 

with 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 or 

anyone 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 be 

of additional assistance in remedying this matter. 

lllliiiiiifully,

lerk's Office 

<lmage001.png> for the Federal Circuit 

From: Judge Pauline New 

Se 

To: 

Subject: Re: Where is our computer? 

www.cafc.uscourts.gov 

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 as 

I never gave such an order. What computer is missing? 

--Clerk's Office 

<image00l.png> U.S. Court of Appeals for the Federal Circuit

From: Judge Pauline New

Se 

To: 

Subject: Where is our computer?

-

www.cafc.uscourts.gov

My office computer is not here; I understand it was 

removed at your instructions. Please restore it 

immediately - I need the drafts, forms, and information 

present on that machine. Please also explain your 

autho1·ity to take my chambers' equipment. 

Judge Newman 

4 
From: 

Sent: 

To: 

Judge Pauline Newman 

Wednesda May 17, 2023 9:13 

EXHIBIT 

l) 

Subject: Re: Please return my computer 

�ee. -everything on my chambers computer is the property of my chambers. It does not belong to a departed

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 iPhone 

On May 17, 2023, at 8:51 AM rote: 

Judge Newman, 

�

Yesterday, I provided a fourth attempt to explain the circumstances of the co�r 

-s 

our 

computer. 

judicial assistant's 

Today is my 

desk 

fifth 

and 

attempt. 

that there are no rec01·ds of yours on -

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 desk 

and someone who has provided techMIM

ical su o�many years-to go to 

your chambers, -brought along 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 actually 

assist 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 with 

him. 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 from 

you. He left your office out of concern that he would further upset you. To say that 

1 
�as shaken up on the phone when recounting his interaction with you and your 

conduct toward him would be an understatement. 

Having refused our assistance, you again levy accusations that we are denying you 

access to your chambers information. Because my four prior exchanges have not 

-s 

sufficiently 

desktop 

explained 

to you 

this 

for 

matter 

examination 

to you; 

by 

I can 

either 

ask 

you 

our 

or 

IT 

your 

staff 

staff 

to provide 

to confirm 

-

what I 

have already communicated to you. 

Alternatively, and notwithstanding how you treated him yesterday,.is more 

than 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 be 

treated with appropriate dignity and respect by you and any member of your 

chambers. 

Please let me know how you would like to proceed. 

From: Judg P uli N wm

Se 

To: 

lerk's Office 

for the Federal Circuit 

Cc: Chief Judge Kimberly A. Moore

Subject: Re: Please return my compu er

I www.cafc.uscourts.gov

-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

On May 16, 2023, at 8:55 AM, �rote:

Judge Newman, 

Let me know when you are in chambers and I will send someone up to 

assist. 

2 
-

lerk's Office 

<image001.png> 

I www.cafc.uscourts.gov 

From: Judge Pauline Newma 

Se 

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 that 

was 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 inspected s

desktop and found no remaining documents or records

from his time in your chambers or records that belong to

you. 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 records

of yours on his .p. As part of this review, I also

confirmed that as no access to your network drive.

In reviewing my records, I have previously addressed this

matter with you by email twice beginning on April 24 and

continuing through April 25, wherein I explained that the

desktops 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 your

3 
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 with

locating 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, your

ability 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 this

exchange, and for your reference, I am also attaching a

copy of that exchange for your awareness. 

Finally, I will add to this conversation that when

left 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 your

network drive, and then issued-a new desktop which

was in the -rmat as the �p currently in your 

chambers. s assigned desktop was then wiped and

prepared fo1· issuance to a new staff member. 

I understand that you may not have been aware of this

policy, but it nonetheless is and has been our policy for all

chambers and court staff for some time. From my 

extensive and repeated review of this situation here, it

appears that our staff have again followed this standard

policy without exception or differential treatment to 

you. Respectfully, your continued characterization that

the 1·e·moval of the desktop was "illicit" is contrary to 

years of court operational policy and practice-including

the handling of equipment with prior departures from

your chambers-and unfairly maligns the staff of this 

court.

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 Newman 

over s 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 my 

chambers, is blank. 

Judge Newman 

5 
From: 

Sent: 

To: 

Cc: 

Subject: 

Judge Newman, 

Thursday, A, ril 27, 2023 8:23 

Judge Pauline Newman 

Greg.Dolin@ncla.legal; mark.chenoweth@ncla.legal 

RE: CONFIDENTIAL: Follow up 

EXHIBIT 

Respectfully, I have not withheld any information from your counsel and stand by what I stated 

in 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 question 

of 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 outside 

of 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 same 

day. 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 have 

continued to provide you with IT support and assistance; full access to existing communication 

and 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 to 

the 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 to 

and available on your private chambers network drive; and directed the prompt restoration of a 

desktop 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 wwwcafc.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 iPhone 

On 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, the 

Judicial 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 this 

point. 

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 be

emailed 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 same

format, again using the same password.

Copy of Current Orde1·s. I will transmit by email to you today all orders already 

entered 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 her 

chambers materials and the ability to transmit opinions to the Clerk's Office for 

issuance. 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 technical 

2 
assistance and support for Judge Newman that we currently provide to all of the 

other 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 -d M 16 2023 15:18 Ju ge e an's behavior 

Thanks, - I'll let you know if she changes her mind. 

-

rk's Office 

or 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.

She said: stole all of her files. I have no JA. I want my PC and Phone back. No one 

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 

1. My name is . I have worked in the Information Technology Office 

(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 the 

work 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 in

her 80s, like Judge Newman was at the time, could pick things up so quickly and

easily. 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 be

routine for her. Judge Newman seems to contact the ITO helpdesk once or twice

a 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 that

would 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 the

errors, she would blame hackers or the computer.

4. It now takes at least double the time to help Judge Newman with an IT issue than

it does an average court user because she often cannot recall routine steps or

processes and we will need to walk her through the entire process and repeat the

same steps over and over again. These are things like remoting into the system

that used to be no problem for Judge Newman until more recently.

5. Judge Newman was also unable to complete an annual security awareness

training 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 the

information provided in the video. The test is multiple choice and asks the same

questions 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 to

retain 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 

[Affidavit 5]
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 and

demanding 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. YOUNG NOTARY 

My CommisslOll 

PU�C 

Expires 

DISTRICT 

NcM!mbef 

Of COLUMBIA

14, 2026

2 
AFFIDAVIT OF 

My name is . I have worked in the Clerk's Office of the United 

States 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 have 

interacted with Judge Newman routinely on a monthly basis. The facts in this 

affidavit 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 for 

telephonic arguments. During this period, from March 2020 to August 2021, we 

frequently experienced delays connecting Judge Newman to the telephonic 

arguments. Judges provided both primary and backup phone number, but there were 

several 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 to 

connect 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 the

transition to telephonic and video arguments than any of the other judges. Of the 

three 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 be 

premature (i.e., questions that would have been answered in the normal course of the 

orientation) or occasionally repetitive. Many of the questions I would receive from 

other judges in these settings centered on how these new procedures would impact 

Judge Newman, and in at least two circumstances I scheduled orientations for other 

judges 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 technical 

procedures, 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 the 

calendar and explained to her how the issue arose. She was suspicious and confused 

1 

[Affidavit 6]
and struggled to comprehend how the error occurred. She seemed distrustful of my 

answers and repeatedly asked whether I needed to consult with others despite my 

assurances 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 can 

follow what is said at oral argument, and I have wondered if this has contributed to 

her 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 she 

presided 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 or 

managed the time. She seemed content to let them continue for as long as they 

wanted. 

5. In my interactions with Judge Newman, the incident that concerned me the

most 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 to 

the end of the hallway to greet Judge Newman. She seemed lost and confused, like 

she 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 the 

antechamber, she needed to sit for more than a minute until she could gather the 

energy 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 this q.fh day of�• 202�

IO.Judge Newman stopped directing her attention to our conversation about the 

computer 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 with and he created a second security key so she

was able to log into her computer. instructed me to instruct Judge Newman

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 

-law 

approximately 3:10pm that afternoon, I fielded a call from Judge Newman's

clerk, , asking why Jud e Newman's chambers phone line 

was being forwarded to . I told that we would investigate 

the issue. 

13-and I together looked at the Cisco Call Manager, which showed that both

Judge Newman's direct line and her chambers line were not being forwarded.

14.I called with my phone on speaker so

her that the lines were not being forwarded to In a demandin 

said that we needed to get this fixed. I believe I told 

we would continue to investigate, and the call ended. 

tone, 

that 

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 the 

had 

chambers 

answered 

line 

a 

to 

call 

answer 

that 

calls 

Judge 

on 

Newman 

her behalf. 

�

We 

ecting 

thought 

and 

it was 

that 

likely 

there 

thatwas some 

confusion and miscommunication because-phone and workstation were not 

presently 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 the 

chambers line or Judge Newman's personal extension. 

16.I briefly left the office. When I returned,.told me that had called

again 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 

17.At 3:28pm, I fielded a call from who asked whether we had been

conducting any testing on the phones and noted that he had received a few calls

that would ring once and then hang up. He mentioned that the calls had been

coming from Judge Newman's chambers and one call from personal

cell 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�to

let him know what we were doing and heard_-;sk-not to pick up the

phone when we called.

19-then proceeded to call Judge Newman's direct line. -again placed the call

on 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 was

working properly. After briefly disc�ituation regarding the phones, 

Judge Newman started to talk about-She stated that-does not 

want 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 to 

the 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 and 

mentioned the Supreme Court as well as the Washington Post. I understood her 

to be talking about the ongoing investigation involving Judge Newman. She then 

demanded 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

detailing the day's events, which I sent in an email to at 4:23pm that 

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. 

Sworn to and subscribed before me this jO-f'1⁄2

4 

I 

Sworn to and subscribed before me this f � day of �, 2-0 23

District of Columbia 

�o� 

Signed 

a/17,/;) 

and 

� 

3 

sworn 

by 

to­. 

Offu IMfl ik ·s:hzJor Seal 

nue ot Office ...., 1 

My Commlsslo{l Expires: 

J -ljf 2'7>/;J.1:>Zlo 

2 
[Affidavit 9]
10.On April 18, 2023, requested that all of Judge Newman's law clerks 

attend an in-person meeting in chambers. 

11. After I learned that the meeting would concern but before the

meeting started, I informed Judge Newman and the other clerks that I would like

to 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, communicating

that 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 she

would not let me work for another judge because the optics wouldn't look good for

her 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 to

matters concerning the investigation.

17. The next day, April 19, 2023, I brought my concerns to the Chief and indicated

that I could no longer work in this environment and requested to be moved to

another 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 

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 of 

individuals 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 to

join Chief Judge Moore in her chambers to call-in an attempt to

informally resolve the matter. asked �ted permission to

record 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 askedif she was willing to refrain from making them in order to resolve this

matter. did not agree to that, saying she would need to think about

it, and could not give a time frame to provide a response. Chief Judge Moore then

-

asked if she was willing to refrain from making after-hours calls to

just for that day, and again did not agree, repeating that she 

would have to think about it. Since that call, I have not received any response to 

the request to refrain from after-hours phone calls from her 

supervisor Judge Newman, no1· am I aware of any response from or 

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 for

interim relief, pursuant to EDR Plan § IV.B.4, by moving workstation

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 the

concerns. 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 him

that unless he moves his workstation back to chambers by 11am, she would accept

his resignation.

9. I 

was 

Judge 

immediately 

visibly 

Prost 

emotional 

and 

asked 

Judge Taranto 

for 

when 

and received 

we 

were 

walked 

a 

also 

meeting with Chief Judge Moore 

into 

in attendance 

the Chiefs 

during 

chambers 

our meeting. 

and 

andneeded 

-

a

moment 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 the

Newman chambers."

10.In 

discussed 

several 

the 

meetings 

toll that 

I had 

this 

with 

entire 

-

experience 

over the 

was 

course 

taking 

of 

on 

many 

his physical 

weeks, -

and

mental well-being, including seeking help from medical professionals.

11. The Request for Assisted Resolution remains pending as of the date of this

affidavit.

I swear and affirm under penalty of perjury that the foregoing is true and con·ect. 

Sworn to and subscribed before me this I g.,-- day of J,iVtt, �23

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 so

that she could file her financial disclosure report. She said no and indicated that

she wanted someone in the Clerk's Office or to do it for her.

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 relationship

with 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 

wa S,t)/ ns-fo(}1 0 L

Jf-M day of

2 

ANNETTE 8. YOUNG 

NOTARY PUBLIC DISTRICT OF COLUM81A 

My Conm1ss1on Expire, Nowlmber 14, 2026 
United States Court of Appeals for the 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 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 the CM/ECF can be retrieved in several ways for purposes of

performing data analysis, including thl'Ough formatted reports and through

raw 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 and

overall internal statistical information.

5. The Clerk's Office also uses Db Visualizer 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 the

complaint 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 to

provide 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 this

calculation 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.l

Judge Newman's Opinion Authorship from October 1, 2020, through 

September 30, 2021 

10. From October 1, 2020, through September 30, 2021, Judge Newman authored

9 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 this

calculation were 1·etrieved from Db Visualizer 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 Db Visualizer was copied into Excel to be in a readable

format and with duplicate cases removed.2 From this data, I calculated the

time 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. 

2 Duplicate cases will appear on this data extract whenever multiple opinions are issued in a case, 

such as if the panel issues a second opinion as part of a petition for rehearing. 

Page 3 of 9 
data using the Days(X, Y) formula and the averaged the results. During this 

period, 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 the

Judges' Assigned Opinion Workload report from SSRS (Exhibit C). The

underlying cases supporting this calculation were retrieved from

Db Visualizer 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 active judge authorships3 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 Db Visualizer was copied into Excel to be in a readable

format and with duplicate cases removed. From this data, I calculated the

time between the authorship assignment of the case and the opinion issuance

data using the Days(X, Y) formula and the averaged the results.4 During this

3 Excluding Judge Newman, only the following judges were in active status and were assigned to 

merits 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 the 

calculation. 

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 to 

opinion issuance of 249.11 days was 2.54 standard deviations from the 

remaining active judge participation mean. 

Judge Newman's Opinion Authorship from October 1, 2021, through 

March 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 Db Visualizer 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 Db Visualizer was copied into Excel to be in a readable

format and with duplicate cases removed. From this data, I calculated the

time between the authorship assignment of the case and the opinion issuance

data using the Days(X, Y) formula and the averaged the results. During this

period, Judge Newman's average time from authorship assignment to opinion

issuance was 198.75 days (Exhibit G).

Page 5 of 9 
16. From October 11 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 the

Judges' Assigned Opinion Workload report from SSRS (Exhibit F). The

underlying cases supporting this calculation were retrieved from

Db Visualizer using function cafc_rpt.Judges_assigned_opinion_workload with

date 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 the

time between the authorship assignment of the case and the opinion issuance

data using the Days(X, Y) formula and the averaged the results.G During this

period, 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 to 

merits 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 the 

calculation. 

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 -Aged

report, 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 Office

entry 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 July ■ 2022, 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}. 

21.Judge Newman assigned herself an argued

case, on May■ 2020. The case was reassigned to Judge-on May■

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 Judgeon March-2021, after it had been pending an opinion for 302 days. After

reassignment to Judge-the opinion issued on March■ 2021

(Exhibit M).

24. Judge Newman assigned hersel

argued case, on January■ 2022. The case was 1·eassigned to Judge

on October ■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 

case, on September■ 2022. The case was reassigned to Judge-on 

January.2023, after it had been pending an opinion for 126 days. After 

reassignment 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]

I, do hereby swear under oath that the following is true to 

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 the

Federal Circuit. On May 31, 2023, I was designated as acting clerk of

court for the U.S. Court of Appeals.

2. As then senior deputy clerk at all times relevant to this affidavit, the

circuit 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 and

through 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 and

overall internal statistical information.

Page 1 of 7 
5. The Clerk's Office also uses Db Visualizer 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 data

necessary excludes much judge-specific information and, as such, is

neither a complete nor fully accurate representation of the work of the

court.

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 authorship

of 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 from

our 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 can

retrieve the public docket of any case through the judiciary's PACER

website. This public docket will provide the opening date of the case and

the judgment and opinion issuance date of the case, which someone can

Page 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 most

accurate 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 a

more accurate calculation of opinion issuance time.

10. Additionally, any calculation of opinion issuance time must only run from

when the case authorship is assigned and exclude all prior periods of the

case. 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 their

investigation.

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 and 

calculations. 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 authorship

assignment 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 are

included, she authored 25 opinions. This information was retrieved from

the 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 and 

dissents, 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 to

issuance. 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 authored

10 majority opinions. If her concurrences and dissents are included, she

authored 28 opinions. This information was retrieved from the

Terminations 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 code

is "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 and

dissents, are included, the average for this period is 61.

19. From October 1, 2021, through March 24, 2023, the next closest judge to

Judge Newman had an average time of 106 days from assignment to

issuance. 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 Db Visualizer 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 Db Visualizer was

copied into Excel to be in a readable format (Exhibit A). The information

from Db Visualizer 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 this

calculation were rntrieved from Db Visualizer 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 Db Visualizer 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 for

the 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 the

remaining 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 and 

correcL Lo the best of my knowledge. 

DATED this J/s/' day of /lo/ J,{)1.,,'J, 

� f

$r 

day of t..AAV . 

"0., -:z.. .

Sworn to and subscribed before me this -�--.... 1-- �t . 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.