llntteb �tates <!Court of §ppeals 

for tbe jf eberal <!Circuit 

UNDER SEAL (NON-PUBLIC ORDER) 

IN RE COMPLAINT NO. 23-90015 

Before MOORE, Chief Judge, PROST and TARANTO, Circuit 

Judges. 

PER CURIAM. 

ORDER 

On July 31, 2023, the Committee issued its Report and 

Recommendation (R&R) to the Judicial Council finding 

that Judge Newman had engaged in misconduct related to 

the disability component of a proceeding initiated against 

her under the Rules for Judicial-Conduct and Judicial-Disability Proceedings (Rules). The misconduct finding was 

that Judge Newman failed to cooperate with, and thereby 

stymied, the Committee's investigation into disability by 

refusing to undergo specified medical examinations, to furnish specified medical records, and to sit for an interview, 

as provided for in Committee orders. As the basis for the 

orders at issue, the Committee relied on extensive evidence 

of interactions with staff reasonably raising concerns about 

disability (R&R at 33-50), evidence from court records 

showing Judge Newman's outlier deficiencies in resolving 

cases, in timeliness and volume (R&R at 50-58), and the 

recommendation of the Committee's medical-expert consultant (R&R at 58-59). 
IN RE COMPLAINT NO 23-90015 

Two weeks later, on August 14, after approximately 

half the time had expired for Judge Newman to prepare 

any response to the R&R that she wished to submit to the 

Judicial Council, counsel for Judge Newman submitted a 

letter asking the Committee for further information from 

court records concerning the second category-statistics 

and case-specific records indicating significant deficiencies 

in resolution of cases attributable to Judge Newman. 

Counsel for Judge Newman asserted: "[W]e need to conduct 

our own analysis of the data relied on by the Special Committee, as well as analyze whether such reliance is appropriate in the first place." August 14 Letter at 1. Counsel 

indicated that Judge Newman intends to have a "consultant" analyze the data and, presumably, provide a report 

with his own analysis of the data. Id. 

We deny the request as untimely, waived, and unjustified. Judge Newman had ample notice of the court-record 

information, which was supplied long ago with statistical 

details and supporting records, and she never sought additional records before filing her brief to the Committee on 

July 5, 2023, or even before the July 13, 2023 oral argument. She expressly agreed before July 5, 2023, that the 

court could proceed on the paper record to decide the noncooperation issue to which the Committee narrowed its focus. And she has provided no basis whatever for questioning the court-record information, much less in a way that 

could undermine its use by the Committee as one component (showing outlier deficiencies in case processing) of the 

overall basis for concern about disability that justified the 

orders with which Judge Newman has not complied. 

BACKGROUND 

Judge Newman has been on notice that information 

about her delays in processing cases is at issue in this proceeding since the identification of the complaint on March 

24, 2023. See March 24 Order at 2-5. Judge Newman 

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recognized in her July 5 brief that the issue was raised in 

that Order and the Committee's May 3 Order (at 7), May 

16 Order (at 5), and June 1 Order (at 3). See July 5 Letter 

Brief at 14 (citing those passages). In particular, in its May 

16 Order, the Committee set out in detail data from Clerk's 

Office records that demonstrated Judge Newman's extraordinary delays in processing cases. See May 16 Order at 13-

18. 

On June 1, the Committee issued an order that narrowed the present focus of the proceeding to the question 

of misconduct based on refusal to comply with the orders 

concerning medical examinations and records and an interview and set a date for Judge Newman's written response 

(July 5, more than a month later) and for oral argument 

(July 13). The Committee supplied Judge Newman, among 

other things, all affidavits it had gathered, which included 

those from the current Clerk of Court which laid out the 

court-record information at issue and attached more than 

80 pages of detailed supporting data and docket sheets. See 

June 1 Order at 5; Perlow May 31 Statistics Aff.; Perlow 

April 6 Aff.. The Committee explained that it was providing Judge Newman "access to the evidence on which the 

Committee based its determinations" in order to enable her 

to argue, if she wished, that the "Committee lacked a reasonable basis for ordering her to undergo examinations and 

to provide medical records." June 1 Order at 5. 

In the same order, the Committee stated its belief that 

the issue to which the matter had been narrowed (for the 

present) could "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. On 

June 15, Judge Newman's counsel informed the Committee: "We agree with this assessment." June 15 Letter at 3. 

Consistent with that agreement, Judge Newman made no 

request for additional information related to any of the 

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affidavits on which the Committee had relied, either before 

filing the July 5 brief, before appearing at the July 13 argument, or before the Committee issued its R&R on July 

31 based on the record developed during the investigation. 

The due date for Judge Newman to make any submission to the Judicial Council in response to the R&R was and 

is August 31 (based on an extension granted in early August). On August 14, after roughly half the time for preparing any response had already expired, Judge Newman's 

counsel submitted a letter to the Committee seeking access 

to raw data from the Clerk's Office related to case processing. According to Judge Newman's counsel, "we need 

to conduct our own analysis of the data relied on by the 

Special Committee, as well as analyze whether such reliance is appropriate in the first place." August 14 Letter at 

1. The letter makes clear that Judge Newman seeks confidential data- that is, "data which has not been publicly

released"-based on the rationale that it is needed for her

"consulting expert" to "conduct a proper analysis." Id. The

letter seeks not only access to data on which the Committee

had relied, which dates back to 2020, but also additional

data going back a further two years to 2018.

JUDGE NEWMAN'S REQUEST FOR DATA IS 

UNTIMELY, WAIVED, AND UNJUSTIFIED 

Judge Newman's request for data is untimely. Judge 

Newman was on notice at least since the Committee's May 

16 Order not only that the Committee had developed data 

from the Clerk's Office showing her extraordinary delays 

in processing cases, but also what that data showed, that 

the Committee was relying on that data as part of its basis 

for the concerns justifying its orders regarding medical examinations and records and an interview, and that public 

data cited by others did not contain information contained 

in data from the Clerk's Office and as a result was inherently unreliable for determining the delays attributable to 

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IN RE COMPLAINT NO 23-90015 

individual judges. May 16 Order at 13-18. In her May 25 

response to that Order, Judge Newman did not question 

any of the data on which the Committee had relied and 

made no effort to suggest that there were errors in that 

data or that she needed access to underlying information 

to conduct her own analysis. 

The June 1 Order focused the proceeding on Judge 

Newman's refusal to comply with the May 16 Order and 

provided the data to Judge Newman through affidavits of 

the now Clerk of Court, with extensive supporting material, so that Judge Newman could challenge the basis for 

the May 16 Order (in her brief due July 5). But before submitting her July 5 brief, Judge Newman once again did not 

ask for access to any raw information from the Clerk's Office. And in her July 5 brief, Judge Newman did not complain of denial of access to more court-record data than the 

Committee had already supplied (no such additional access 

having been requested), but presented an assessment of 

public data performed by Ron Katznelson. See July 5 Brief 

at 14. Judge Newman decided to take that route even after 

the Committee had already explained in its May 16 Order 

that publicly available data do not contain much of the information contained in data from the Clerk's Office and 

thus necessarily provide an inaccurate picture of delays attributable to individual judges on the court. 

After Judge Newman submitted her brief on July 5 

(and the follow-up submission a few days later responding 

to the Committee's request based on the July 5 brief), and 

after the Committee heard argument on July 13, the Committee was charged with preparing a report for the Judicial 

Council, "including findings and recommendations for 

council action," Rule 17, and doing so "expeditiously," 28 

U.S.C. § 353(c). Yet neither before the July 5 brief was 

filed, nor before the July 13 oral argument was held, nor 

before the July 31 Report and Recommendation was issued, did Judge Newman seek the information she now 

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seeks. Judge Newman thus bypassed all pre-R&R opportunities for shaping the record concerning the Clerk's Office information at issue, despite clear notice of its content 

and contemplated use. Allowing such a request after the 

fact, in the face of bypassed opportunities, undermines an 

elementary, routine, important, and familiar principle of 

legal procedure. 

In addition to being untimely, Judge Newman's request for access to raw data from the Clerk's Office to reopen the record and add additional data-and apparently 

a report from a "consulting expert" as well-is improper because it was waived. Judge Newman expressly agreed in 

this case that there was no need for further factual development for the Committee (and the Judicial Council) to 

reach a decision on the question whether Judge Newman 

had committed the misconduct now at issue (refusal to 

comply with the orders concerning medical examinations 

and records and an interview). The Committee explained 

in its June 1 Order that it had determined that the misconduct question could be determined without any further factual development "based upon the paper record ... along 

with any legal argument Judge Newman wishes to submit." June 1 Order at 4. Judge Newman did not object to 

that conclusion. To the contrary, on June 15, Judge Newman's counsel expressly informed the Committee: "We 

agree with this assessment." June 15 Letter at 3. Judge 

Newman thus waived the ability to argue that she should 

be allowed to submit additional data or other factual material by expressly agreeing that no further factual development was necessary to decide the issue of misconduct 

through non-compliance. 

Finally, Judge Newman has not provided any justification for taking the extraordinary step of reopening the record to permit additional factual development at this late 

stage in the proceedings. Her counsel do not point to any 

information suggesting any defect or error in the statistics 

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provided by the Clerk's Office pursuant to a sworn affidavit 

from the Clerk of Court. All they offer is their bare assertion that, now, "we need to conduct our own analysis." August 14 Letter at 1. They do not identify any reason to 

think that there is an error at all. More specifically, Judge 

Newman's counsel do not identify any reason to think that 

there is an error whose correction could undermine the sole 

point for which the Committee used the court-record information: Namely, it shows outlier deficiencies (compared to 

other active judges) in Judge Newman's resolution of cases, 

relevant as one component, along with staff-interaction evidence and an expert recommendation, of the reasonable 

basis for concern about disability that justified the orders 

with which Judge Newman has refused to comply. Even if 

we assumed that an exception to the untimeliness and 

waiver could be justified on a concrete showing of error material to the challenged result, we could not find this to be 

a case to apply such an exception: There is nothing even 

close to such a showing. 1 

1 Counsel's request for data going back to 2018 is especially misplaced. The only question before the Committee-and now before the Judicial Council-is whether the 

information the Committee relied upon provided a reasonable basis for the Committee's orders on medical examinations, medical records, and an interview. The Committee 

relied on data dating back only to 2020, showing outlier deficiencies of Judge Newman compared to other active 

judges during this period. The question is whether the evidence relied on in the R&R, of which the data was only one 

part, provided a reasonable and sufficient basis for the 

Committee's decisions, which are focused on the evaluation 

of current disability. Judge Newman's counsel have not 

laid out a persuasive explanation of how data from an earlier time period (from 2018 to 2020) could undermine the 

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The time for counsel to hire a consultant (if they 

wished) and to conduct their "own analysis" of the data was 

before they submitted their July 5 Brief and before the record closed. If they needed more time to prepare such an 

analysis, they should have asked for it then. At this point, 

after the Committee has already made its findings and the 

record has long been closed, after employees have been put 

through troubling interactions and come forward with 

their accounts (not challenged), it is far too late for Judge 

Newman to request reopening the record without offering 

a compelling justification for taking such an extraordinary 

step. Nothing close to such a justification is offered here. 

For the foregoing reasons, Judge Newman's request for 

access to confidential raw data on case processing from the 

Clerk's Office is denied. 

SO ORDERED: August 17, 2023. 

Committee's basis for its orders designed to assess current 

disability. 

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