(CN) — Judge Pauline Newman broke new ground in 1982 when she helped create the Federal Circuit Court to take on major patent cases involving technology and pharmaceutical companies. Now, the 96-year-old is fighting to keep her seat on the bench.
On Tuesday, Newman's attorney's from the nonpartisan civil rights organization the New Civil Liberties Alliance filed an amended complaint and a motion seeking to restore her position in the court, after she was suspended by her colleagues from hearing new cases while her competency and conduct was investigated.
Newman says court's decision to suspend her without finding any misconduct first is unlawful and unconstitutional.
A special committee composed of Chief Judge Kimberly Moore, Judge Sharon Prost, and Judge Richard Taranto is investigating whether or not Newman has a mental or physical disability that renders her unable to fulfill her duties in office.
Newman is the oldest active federal judge in the nation but claims that she is still perfectly capable of continuing her work.
According to the New Civil Liberties Alliance, a recent examination by neurologist Ted Rothstein found that Newman showed no significant cognitive deficits. Rothstein concluded that the judge's “cognitive function is sufficient to continue her participation in her court’s proceedings.”
Newman was ordered by the special committee to submit to various neurological and neuropsychological examinations before physicians of their choosing, but they have argued that she has continuously failed to comply.
“As public evidence has mounted that Judge Pauline Newman remains fully capable of performing her duties as a judge of the U.S. Court of Appeals for the Federal Circuit, the Judicial Council’s rationale for suspending her has shifted from alleging mental and physical incapacity to now focusing on her alleged lack of cooperation with the unlawful process the Council has employed to keep her off the bench," said Mark Chenoweth, president and general counsel of the NCLA.
"NCLA is filing this Motion to ensure that Judge Newman is restored to the bench immediately — where she belongs — and that any subsequent investigation taking place adheres to statutory and constitutional strictures," he added.
Tuesday's filings on Newman's behalf also assert that the committee's noted reasons for launching their investigation are "riddled with errors." The NCLA argues that Chief Judge Moore falsely claimed that Newman had supposedly suffered a heart attack sometime in 2021, because Newman sat on ten panels and issued at least eight opinions during the same time period.
The group also claims that Judge Moore subjected Newman to an "intimidation tactic" by allegedly telling her that she would not docket the court's complaint, if Newman agreed to an informal resolution to retire from the court.
"Another problem with the Judicial Council’s investigation is that the other Federal Circuit judges are acting as complainants, witnesses, and adjudicators simultaneously. To avoid such conflicts of interest, the standard practice would be to ask the Chief Justice of the United States to transfer the investigation to another circuit for impartial resolution," a spokesperson for the NCLA said.
The group argues that if the investigation is to continue, due process of law requires neutral judges from another circuit to conduct it.
Newman claims that she was also stripped of her assistant, law clerk and even her office computer, but Moore has written that those staff members chose to leave. Newman argues that the chief judge reassigned her judicial assistant to another office and delayed getting her a replacement, which "greatly impaired" her ability to accomplish her judicial duties such as processing opinions and responding to colleagues.
Part of the judicial complaint against Newman claims that she a significant backlog of cases that put her in violation of Federal Circuit Clerical Procedures. According to the judicial committee, Newman had nine opinions pending with four that were over 120 days old and one over 454 days old at the time they began their investigation. The committee also claimed Newman was "dramatically slower" than the other judges, authoring only 28 opinions compared to the average 61 from the other active judges, and in an approximate span of 199 days compared to their 58 days.
Court staff members allegedly reported to the committee that Newman had experienced "significant mental deterioration, including memory loss, lack of focus, confusion, and the inability to understand and execute simple tasks" over the course of the last year.
"Whatever the rationale, the Judicial Council may not punish Judge Newman before conducting its investigation, it cannot indefinitely suspend her from hearing future cases, and it cannot persist in investigating her despite its own conflict of interest," the NCLA said. "The myriad statutory and constitutional problems infecting this investigation provide ample reason for the district court to grant a preliminary injunction in this case."
Referred to as "the heroine of the patent system," Newman has an extensive history in revolutionizing patent law and served as the director of the Patent, Trademark and Licensing Department before being appointed by former President Ronald Regan to serve on the court she helped him create as part of a presidential committee on industrial stagnation. In her career as a circuit judge, she's authored more than 300 dissenting opinions — many of which have been adopted by the Supreme Court during appeals.
After being nominated by the president and confirmed by the U.S. Senate, federal circuit judges "hold their office during good behavior," meaning they have a lifetime appointment, except under extremely limited circumstances.
The case is shining new light on the centuries-old, controversial concept of lifetime tenures, while the current federal judiciary is older than ever before with the median age being 68.
Many states have mandatory retirement ages, but the federal bench has limited options when it comes to pushing out judges. Federal Circuit judges can only be removed from office through impeachment by the House of Representatives and conviction from the Senate, but that is rarely ever done.
The judicial committee has until July 24 to reply to Newman's amended complaint that was filed in the U.S. District Court for the District of Columbia. Attorneys for both parties did not immediately respond to a request for comment.
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