United States Court of Appeals 

forthe Federal Circuit

UNDER SEAL (NON-PUBLIC ORDER)

IN RE COMPLAINT NO. 23-90015

Before MOORE, Chief Judge, PROST and TARANTO, Circuit 

Judges.

PER CURIAM. 

ORDER

On July 5, 2023, Judge Newman, through counsel, submitted a brief as required by the Committee’s order of June 

1, 2023. The brief asserts that Judge Newman was recently evaluated by a neurologist (Ted L. Rothstein, M.D.), 

that his examination “revealed no significant cognitive deficits,” and that “[t]his examination should obviate the need 

for any further testing and bring these proceedings . . . to a 

speedy conclusion.” July 5 Letter Brief at 2. Despite the 

asserted importance of this evaluation, the Letter Brief 

fails to provide any further description of Dr. Rothstein’s 

examination of Judge Newman and counsel did not even 

submit a copy of Dr. Rothstein’s report along with the Letter Brief. After the Committee requested that a copy of the 

report be submitted for the record, on July 6, 2023, counsel 

submitted only a redacted version of the report.

Because these proceedings are presumptively confidential and kept under seal—and because Judge Newman has 

already made an unredacted copy of Dr. Rothstein’s report 

available to the Committee members by proposing to file it
IN RE COMPLAINT NO 23-90015

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under seal in her pending district court action—the Committee does not believe there is any plausible basis for refusing to file an unredacted copy of Dr. Rothstein’s report 

as part of the record in this proceeding. Accordingly, counsel shall submit an unredacted copy of Dr. Rothstein’s report for the record no later than 9:00 a.m. on Wednesday, 

July 12. To the extent that Judge Newman desires to keep 

part or all of Dr. Rothstein’s report confidential, counsel 

should make clear in that submission which portions of the 

report, if any, may be made public pursuant to Judge Newman’s prior request under Rule 23(b)(7) that her July 5 

submission should be made public. See July 5 Letter Brief 

at 1 n.1.

In addition, the Committee believes that further information is required for the Committee to be able to assess 

the significance of Dr. Rothstein’s report for these proceedings.

First, Dr. Rothstein states that a “partial MOCA examination” was performed on Judge Newman. A MOCA examination refers to the Montreal Cognitive Assessment, 

which is a one-page test, the current version of which is 

attached as Exhibit 1 to this order. The test has several 

subparts and typically requires the person administering 

the test to check boxes and tally up points on each sub-part. 

Because the MOCA examination appears to form a central 

part of Dr. Rothstein’s evaluation, and only part of the test 

was administered, the Committee believes it is essential 

that the Committee have before it in the record the actual 

test administered to Judge Newman showing the scoring 

on each part. Accordingly, by no later than 9:00 a.m. on 

Wednesday, July 12, counsel shall submit a copy of the 

MOCA test administered to Judge Newman, showing the 

markings on the test and scores for each subpart and the 

signature of the person who administered the test. Counsel should also be prepared to address at argument the
IN RE COMPLAINT NO 23-90015

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scoring of Judge Newman’s MOCA test as described on 

page 2 of Dr. Rothstein’s report.

Second, Dr. Rothstein’s report refers to an analysis of 

Judge Newman’s recent opinions by Professor Andrew 

Michaels at the University of Houston Law School, which 

Dr. Rothstein apparently considered as part of his evaluation of Judge Newman. His report also refers to articles in 

the Washington Post. It is important for the Committee to 

understand the full body of materials that was submitted 

to Dr. Rothstein to inform his assessment of Judge Newman. Accordingly, by no later than 9:00 a.m. on Wednesday, July 12, counsel shall submit a complete list of all 

materials provided to, or consulted by, Dr. Rothstein in his 

evaluation of Judge Newman and a copy of all such materials. To the extent Judge Newman objects to providing 

copies of any such materials (such as, for example, medical 

records, if any, that were provided to Dr. Rothstein), counsel should describe the type of materials that were provided 

(e.g., medical records from a treating cardiologist) and note 

that Judge Newman objects to providing a copy of the records themselves. To the extent that Judge Newman objects 

to even describing the type of materials provided to Dr. 

Rothstein, counsel must make clear in any submission that 

materials were provided to Dr. Rothstein and that Judge 

Newman refuses to describe them.

Accordingly,

IT IS ORDERED THAT:

By 9:00 a.m. on Wednesday, July 12, counsel shall submit to the Committee:

(1) an unredacted copy of the report from Dr. Rothstein 

referred to on page 2 of the July 5 Letter Brief;
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(2) a copy of the actual MOCA test administered to 

Judge Newman, showing all notations of scores on each 

subpart and the signature of the person who administered 

the test; and

(3) a list and a copy of all written materials provided 

to, or consulted by, Dr. Rothstein to inform his evaluation 

of Judge Newman.

SO ORDERED: July 7, 2023.
Exhibit 1