United States Court of Appeals 

for the Federal Circuit

__________________________

IN RE COMPLAINT NO. 23-90015

__________________________

Before MOORE, Chief Judge, PROST and TARANTO, Circuit 

Judges.

PER CURIAM. 

ORDER

After requesting that the transcript of the oral argument in this matter be made public, Judge Newman objects 

to releasing the transcript in a redacted form that has been 

agreed to in all but one respect. She objects to the insertion 

of the generic descriptor “cardiac condition” as a substitute 

for a more specific phrase that both the Committee and 

Judge Newman propose to black out. The Committee understands her objection to mean that, unless that genericdescriptor substitute for the hidden phrase is deleted from 

the transcript proposed for public release, she wishes to 

withdraw her request pursuant to Rule 23(b)(7) to make 

the transcript public.

For the reasons explained below, the Committee has 

determined, pursuant to Rule 23(b)(8), that releasing the 

transcript with the generic descriptor “cardiac condition” 

in place of the hidden, more specific phrase is warranted

along with this order “in the interest of assuring the public 

that the judiciary is acting effectively and expeditiously in 

addressing the relevant complaint proceeding.” Rule 
IN RE COMPLAINT NO 23-90015

2

23(b)(8) cmt. Judge Newman and her counsel have publicly 

demanded maximal release of Committee materials, with 

particular reference to this transcript. The only dispute is 

use of a generic substitute for hidden words, and use of 

such substitutes is standard practice for redactions, particularly in this court. This particular generic descriptor, 

moreover, reflects what is already revealed by Judge Newman’s own public submissions in this matter and by transcript text to which she does not object. And use of the 

generic descriptor here avoids leaving any misleading impression that Judge Newman suffers from no cardiac condition whatsoever that may be relevant to observed 

incidents suggesting cognitive decline. Accordingly, the 

Committee will release the transcript with the generic descriptor “cardiac condition” in place of the hidden phrase at 

issue along with this order.

BACKGROUND

On June 15, 2023, in keeping with a pattern of requests 

seeking to make public all aspects of the proceedings in this 

matter,1 Judge Newman requested that the oral argument 

scheduled for July 13, 2023, should be open to the public. 

1 In both her July 5 Brief and her July 12 Letter, Judge 

Newman requested the public release of those briefs (and 

“all other submissions to the Special Committee”) and “any 

Order or other response to the present submission.” July 

12 Letter at 1 n.1; July 5 Brief at 1 n.1 (“we respectfully 

request, and Judge Newman explicitly consents to, the 

public release of this letter and any Order or communication issued in response thereto”). Judge Newman thus requested that everything, even future orders or responses 

by the Committee be made public. Following Judge Newman’s written request, the Special Committee Report and 

Recommendation was made public which was a response to 

both her July 5 Brief and her July 12 Letter. 
IN RE COMPLAINT NO 23-90015

3

By order of June 20, the Committee reaffirmed its decision 

that the argument should be closed to the public to ensure 

that the Committee and counsel could freely discuss any 

information that should remain confidential but indicated 

that the Committee would release a transcript with appropriate redactions to protect confidential material. June 20 

Order at 8.

On July 27, the Committee transmitted a transcript to 

Judge Newman’s counsel so that they could propose redactions for any confidential information that Judge Newman 

did not want publicly released. On August 8, counsel for 

Judge Newman suggested redactions that included, inter 

alia, redacting language that specified a cardiac condition 

that Judge Newman has. On August 9, the Committee sent 

counsel for Judge Newman a copy of the transcript narrowing some of counsel’s proposed redactions and, in four 

places at which a specific phrase appears, hiding that 

phrase and inserting in brackets “[a cardiac condition]” the 

first time and (with a definite article to refer back) “[the

cardiac condition]” the remaining three times. The first 

time, unredacted words immediately following the substitute indicate that what the hidden phrase refers to was “being treated by – with a Pacemaker” and is a “heart-related 

problem.” Tr. 17. The second time, unredacted words surrounding the hidden phrase indicate that that the subject 

was a “cardiac issue[], which . . . could result in [various 

symptoms including] confusion, . . . fatigue, . . . .” Tr. 19. 

Judge Newman’s counsel responded by objecting to the 

transcript version proposed for release by the Committee 

on only one ground. The sole objection was to the insertion 

of these generic descriptors, not to anything else, including 

retention of the surrounding words just noted. The stated 

ground was that, “[i]n our experience with redactions, inserting alternative language is not an accepted practice” 

and that “the substituted language would be unfair to 

Judge Newman.” August 9, 2023 Email from Andrew 
IN RE COMPLAINT NO 23-90015

4

Morris to Jarrett Perlow. The Committee has interpreted 

this objection to indicate that, if the generic descriptor “cardiac condition” is inserted in the transcript, Judge Newman withdraws her request pursuant to Rule 23(b)(7) to 

have the transcript made public.

THE TRANSCRIPT SHALL BE RELEASED USING 

THE GENERIC “CARDIAC CONDITION” 

DESCRIPTOR IN PLACE OF THE HIDDEN 

TERMINOLOGY

Pursuant to Rule 23(b)(8), the Committee has determined that, even if Judge Newman withdraws her request 

to have the transcript made public, the redacted transcript—with the term “cardiac condition” inserted in place 

of more specific terminology that has been redacted—

should be made public “in the interest of assuring the public that the judiciary is acting effectively and expeditiously 

in addressing the relevant complaint proceeding.” Rule 

23(b)(8) cmt.2 Several considerations support our decision. 

First, the public assurance policy of Rule 23(b)(8) would 

be undermined by withholding the argument transcript in 

its entirety simply because Judge Newman has withdrawn 

her request under Rule 23(b)(7). At Judge Newman’s request (indeed, her repeated requests), virtually the entire 

record in this proceeding (with limited redactions) has been 

made public. That has enabled the public to see exactly

how the Committee has proceeded in this matter, which 

has been important for ensuring public confidence in the 

mechanism Congress created for the judiciary to police itself on matters of disability. Shrouding the oral argument 

in secrecy at this point would only raise questions and speculation about what could have been discussed at the argument that warranted keeping the entire transcript secret. 

2 This is also the determination of the Chief Judge pursuant to Rule 23(b)(8).
IN RE COMPLAINT NO 23-90015

5

All the more so because Judge Newman’s counsel publicly 

complained about being under a secrecy order and therefore unable to discuss the hearing (at a time the Committee 

had already provided him the transcript and was awaiting 

his proposals for redaction, pursuant to the agreed-to process). Exclusive Interview with Judge Pauline Newman’s 

Attorney Greg Dolin, Clause 8, at 34:32–39 (Aug. 1, 2023), 

https://clause8.libsyn.com/exclusive-interview-with-judgepauline-newmans-attorney-greg-dolin And creating such 

doubts would be wholly unjustified, because there remains 

only one focused dispute, concerning the generic-descriptor 

substitute for a hidden phrase, and, as explained next, the 

Committee’s resolution of that dispute is proper.

Second, the suggestion from Judge Newman’s counsel 

that, when redactions are made, “inserting alternative language is not an accepted practice,” is simply incorrect. Our 

court has a rule governing redaction in filings (e.g., briefs, 

motions, etc.), and it expressly provides in mandatory 

terms that, in the public (nonconfidential) version of a filing in which redactions have been made, “an adequate, 

general descriptor of the material must appear over the deletion or redaction.” Fed. Cir. Rule 25.1(e)(1)(B) (emphasis 

added). The practice notes to this rule explain that “[w]hen 

including a general descriptor of redacted information, that 

description must appear in place of the redacted information, e.g., ‘dollar amount,’ ‘number of items,’ ‘chemical 

name.’” Practice Note, Fed. Cir. Rule 25.1(e)(1)(B). That 

rule reflects the commonsense approach that, when material has been redacted in the public version of a filing, it 

aids public understanding to include some descriptor indicating the general nature of the redacted information.

Our court is far from alone in using this practice. Numerous cases reflect the practice of replacing redacted material with some more generic descriptor to ensure that, 

even where specific terms are redacted, the document is 

still intelligible and accurately conveys to the reader the 
IN RE COMPLAINT NO 23-90015

6

meaning of the document. See, e.g., Linc Gov’t Servs., LLC 

v. United States, 96 Fed. Cl. 672, 685–86 (2010) (“First, the 

SSA noted that, while GLS had received moderate to poor 

overall ratings of [number redacted] and [number redacted]”), abrogated on other grounds by Safeguard Base 

Operations, LLC v. United States, 989 F.3d 1326 (Fed. Cir. 

2021); see also MSC Indus. Direct Co. v. United States, 126 

Fed. Cl. 525, 525 n.1 (2016) (“The court adopted the parties' 

suggested redactions, removed the information, and inserted brackets to replace the redacted content.”); ACLU v. 

Dep’t of Def., No. 04 CIV. 4151 AKH, 2009 WL 8739232, at 

*1 (S.D.N.Y. Dec. 29, 2009) (“[T]he Court orders that specific words be inserted in brackets to replace the actual text 

of the documents in certain limited instances.”), adhered to 

on reconsideration, 723 F. Supp. 2d 621 (S.D.N.Y. 2010), 

aff’d in part, rev’d in part sub nom. Am. C.L. Union v. Dep’t 

of Just., 681 F.3d 61 (2d Cir. 2012); CBY Design Builders 

v. United States, 105 Fed. Cl. 303, 308 n.1 (2012) (“Redacted names are replaced by pseudonyms (within brackets).”). 

In fact, it has been the Committee’s practice throughout this proceeding, when publicly releasing orders at 

Judge Newman’s request, to substitute generic language in 

the place of redacted material. See, e.g., March 24 Order 

at 4-5; April 6 Order at 1-2, 4-6; April 20 Order at 1-9; May 

16 Order at 3, 10-13. Judge Newman has never raised any 

objection to this practice in the past. 

Third, following that practice here, with use of the particular proposed general descriptor, is entirely justified. It 

is not “unfair” to Judge Newman, because it merely makes 

more immediately intelligible certain transcript references 

to material already revealed by disclosures made, or now 

accepted, by Judge Newman (through counsel). Along with 

her July 5 Brief, Judge Newman submitted for the public 

record a redacted version of a report from a neurologist. 

That public document disclosed that Judge Newman has “a 
IN RE COMPLAINT NO 23-90015

7

cardiac pacemaker,” thus indicating that she has a cardiac 

condition that requires medical intervention. See Rothstein Report at 2. Using the term “cardiac condition” to 

replace more specific language in the transcript thus will 

reveal nothing that a careful reading of Judge Newman’s 

public document has not already revealed.3 And as indicated above, Judge Newman, in limiting her objection to 

the Committee-proposed version of redaction to the insertion of the generic-descriptor substitute, has accepted surrounding words that also reveal that the hidden phrase 

refers to a cardiac (heart-related) condition treated with a 

pacemaker—indeed, one having symptoms such as confusion and fatigue. In these circumstances, use of the “cardiac condition” substitute serves the customary 

intelligibility-adding purpose of such a substitute without 

disclosing what otherwise remains unrevealed.

Fourth, adding the generic-descriptor substitute also 

reduces a risk of public misunderstanding that is real in 

this matter. In public media, including by making the narrow denial that Judge Newman had a “heart attack,” Judge 

Newman and her counsel have repeatedly promoted the 

broader notion that she has no heart-related medical condition relevant to the functional disabilities under investigation or, more specifically, to the justification for the 

Committee’s ordering of medical examinations and furnishing of medical records. See, e.g., Dani Kass, Judge 

Newman’s Not Sure the Fed. Cir. Can Be Salvaged, https://www.law360.com/articles/1698074 (July 12, 

2023); Greg Dolin & Philip Hamburger, Judges Attack 

3 In fact, the same redacted version of the Rothstein 

Report, also disclosing that Judge Newman has “a cardiac 

pacemaker,” is on the public docket in the lawsuit Judge 

Newman has filed against the Committee. See Moore v. 

Newman et al., No. 1:23-cv-01334-CRC, Dkt. 10-1 (D.D.C. 

June 27, 2023).
IN RE COMPLAINT NO 23-90015

8

Judicial Independence, Wall St. J. (Aug. 10, 2023); Report 

and Recommendation at 81–82. The latter in no way follows from the former, and it is not the occurrence of a heart 

attack, but the presence of a heart condition with confusion 

and other symptoms of clear relevance to the disability inquiry, on which the Committee, after investigation, has relied for its findings and recommendation. That distinction 

is important to accurate public understanding—both of the 

facts and of the integrity of the Committee’s investigation.

The Committee-proposed generic-descriptor substitute, by adding intelligibility to the transcript, furthers an 

accurate public understanding, which is important in the 

face of a contrary view that may have been fostered by public statements of Judge Newman and her counsel. In this 

way, the policy of Rule 28(b)(8) is specifically advanced by 

use of the generic-descriptor substitute at issue. When a 

selective public release of materials would create a misperception in the public about a judicial conduct or disability 

proceeding, Rule 23(b)(8) exists to remedy that situation. 

Indeed, it was for a similar reason that the Judicial Council 

began publicly releasing materials in this case on April 14, 

2023, after other selective public disclosures. And the importance of invoking Rule 23(b)(8) is further enhanced by 

the fact that Judge Newman and counsel have attacked the 

integrity of the Committee investigation. Rule 23(b)(8) is 

properly invoked where, as here, disclosure is “in the interest of assuring the public that the judiciary is acting effectively and expeditiously in addressing the relevant 

complaint proceeding.” Rule 23(b)(8) cmt.

For all these reasons, the Committee finds that, to present an accurate picture of this proceeding to the public,

the generic descriptor “cardiac condition” should appear in 

the publicly released version of the argument transcript in 

the place of redacted language more specifically describing

Judge Newman’s condition.
IN RE COMPLAINT NO 23-90015

9

 

IT IS ORDERED THAT: 

(1) Pursuant to Rule 23(b)(8), the Committee and the 

Chief Judge determine that the generic descriptor “cardiac 

condition” should appear in the publicly released version of 

the argument transcript in the place of redacted language 

more specifically describing Judge Newman’s condition. 

SO ORDERED: August 16, 2023.