Guest Post by Paul R. Gugliuzza, Professor of Law, Temple University Beasley School of Law
The judicial disability proceedings instituted against Federal Circuit Judge Pauline Newman have now spilled into litigation. As Dennis reported yesterday, Judge Newman filed a complaint in D.C. federal district court seeking, among other things, to enjoin and terminate the proceedings.
Judge Newman’s complaint contains previously unreported details about the events giving rise to the disability proceedings against her. For instance, the complaint discloses an allegation, which was previously redacted from an order written by Chief Judge Moore in the disability proceedings, that, in the summer of 2021, Judge Newman had a heart attack and underwent coronary stent surgery.
Judge Newman’s complaint responds to that allegation by stating that “[d]uring the period (June 2021 through September 2021) when Chief Judge Moore claims that Judge Newman suffered a heart attack, Judge Newman sat on ten panels and issued at least eight (including majority, concurring, and dissenting) opinions.” Chief Judge Moore’s order, for its part, noted that Judge Newman wrote many fewer majority opinions than her colleagues over the past few years.
This dispute over Judge Newman’s ability to perform her judicial duties is an unfortunate tarnish on Judge Newman’s reputation and on the image of the Federal Circuit. And, because many of the relevant events occurred behind closed doors, we might never know for sure what’s been happening.
Is Judge Newman slowing down at age 95? Quite possibly. But is she “unable to discharge all the duties of office”—the standard set by law for instituting disability proceedings?
For some insight into Judge Newman’s workload as compared to her colleagues, I used Jason Rantanen’s Compendium of Federal Circuit decisions to collect and analyze data on the number of opinions written by individual Federal Circuit judges from June 2021 (the time of Judge Newman’s alleged heart attack) through the end of 2022. Those numbers tell a complicated story.
First off, Judge Newman’s assertion in her complaint that she wrote eight opinions from June 2021 through September 2021 is pretty much accurate. Over that time period, Judge Newman wrote one majority opinion (in a veterans case) and six dissenting opinions (either partial or full). In the eighth and final case that I was able to find, Judge Newman concurred in the result but didn’t write an opinion.
How does Judge Newman’s rate of opinion writing compare to her colleagues? The table below reports the number of opinions (precedential or not) written by each Federal Circuit judge who was in active service for the entire time period of June 1, 2021 through December 31, 2022—ten judges in total.
Opinions by Federal Circuit Judges (June 1, 2021 through December 31, 2022)
As the table makes clear, Judge Newman is an outlier, having written only nine majority opinions over that 19-month period. The judge with the next lowest number of majority opinions, Judge Chen, wrote three times as many as Judge Newman. In a group of ten active court of appeals judges, we would expect that, on average, each judge would write roughly 10% of the majority opinions. Yet Judge Newman wrote barely 2% (9 of 387).
Looking at concurring and dissenting opinions complicates things though. From June 2021 through the end of 2022, Judge Newman wrote 23 of those separate opinions. (And she concurred or dissented without opinion in four additional cases.) The two judges with the next most separate opinions, Judges Reyna and Dyk, wrote roughly half as many (13 and 11, respectively).
Overall, then, Judge Newman wrote 32 opinions from the time of her supposed heart attack through the end of 2022. That’s on the low side for an active Federal Circuit judge, but it’s worth noting that Judge Chen actually wrote fewer total opinions (30) over that same period.
Is a judge who writes, on average, more than one dissent or concurrence a month “unable” to discharge her duties? Arguably not. But, then again, there are underlying questions about Judge Newman’s physical and mental health that we can’t possibly know the answers to at this point.
And nothing is helped by the often-salacious framing of these disability proceedings as, essentially, a personal dispute between a famously headstrong—and female—Chief Judge quarreling with another female judge who, regardless of recent events, is indisputably a titan of the patent bar.
Rather, Judge Moore is acting in her official capacity as chief judge of a federal court of appeals and is proceeding in accordance with the framework set by statute and by the rules governing judicial disability proceedings. Judge Newman, for her part, is contesting both the process and merits of those proceedings, as she has every right to do. It’s not a judicial “cat fight.” It’s a legal dispute among judges—including other judges on the Federal Circuit—who genuinely disagree about what’s best for the court and the litigants who appear before it.
Turning back to the opinion numbers, the nub the conflict might be Judge Newman’s propensity to dissent. Each one of her 23 separate opinions reported on the table above dissented, at least in part. Because a dissenting judge, by definition, can’t write the majority opinion, a judge who dissents a lot creates a lot more work for her colleagues. And judges are, in the end, just people. A judge who does less work on majority opinions and who regularly refuses to compromise is unlikely to win many friends. Nor is a judge who constantly dissents likely to respond well to colleagues who suggest she take senior status or retire. Even if none of the Federal Circuit’s judges say so, frustration with Judge Newman as the court’s “great dissenter” is probably at least part of the reason for this sad saga.
Another salvo has been fired:
link to fingfx.thomsonreuters.com
(I have not yet read the order)
I have read the May 16, 2023 order denying transfer , which states that Judge Newman is first required to comply with the committee’s request for medical records and their ordered neurological and neuro-psychological evaluations and testing by a neutral doctor of their choosing.
Interestingly, although the special Committee was formed by order of March 24, 2023, all recitations of concerns by the court’s staff seem to be more recent. When dates of incidents were included, they occurred after the March 24, 2023 order. Notably, the Commitee highlights a staff member for Judge Newman invoking the Fifth Amendment.
If any of those have a date later than notice from Newman’s counsel, then I certainly hope that the communications were proper.
As is, this current order smells of a cat fight.
Leave it to patentlyo commenters to comment on things they have zero understanding about. The entire purpose of appointing the special committee is to investigate the merits of a complaint lodged against Judge Newman, they obviously have the power to interview individuals to investigate.
All of this is laid out in the Rules on Judicial Conduct, as well as the statutory basis for such rules. Please inform yourself before accusing a very serious issue of being a mere “cat fight.”
If the details outlined in the order are true (and one would have to be highly conspiratorial to believe all of the staff and judges are lying about their interactions with Judge Newman), then she is very much not doing well. The pro-patentee media trying to take sides on this issue before knowing of the details and implying the Court is acting in bad faith because they don’t like her dissents is frankly unprofessional. I hope none of you are practitioners.
Well bite me for observing the obvious, and yes, I do understand the role of the rules in the Rules of Judicial Conduct.
Do you understand the filing by Judge Newman’s attorney?
Perhaps you should heed your own advice, and learn about the rest of the story before you put your own full faith in the accusations.
Shouldn’t they have plenty of evidence dated before the complaint?
I read the orders this morning. One of the orders spends a lot of time emphasizing the need to keep information from leaking outside the proceedings. Then another order (which was originally issued under seal, but is now unsealed) spends a lot of time flogging salacious allegations as to why Judge Newman is suspected of incapacity.
These two really do not work together. If confidentiality is essential to the integrity of the investigation (and I am willing to believe that it is), then it follows that details about Judge Newman’s alleged lapses need to be kept confidential as well. It is not fair for the accusers (who happen to be the judges as well) to be allowed to air their case in public, but simultaneously insist that Judge Newman is bound by the statutory confidentiality rules.
The orders left me convinced that the case really needs to be transferred to a different set of judges. The Chief Justice should insist as much.
Utter nonsense in the hidden “p” link
Hint: “Why the Right Needs Hunter Biden
They think his story assuages their guilt, but it doesn’t.”
A better hint for the Left: stop feeding yourself strawmen.
Why do people use these hidden links? Are they sending secret messages to each other? It is bizarre.
Greg “I Use My Real Name Except When I Post As Dozens” DeLassus is the only one that employees that technique.
And yes, it is bizarre.
I am not sure that it makes sense to call the links “hidden.” In any event—since you asked—I include links with no relevance because it amuses me to do so. It is as simple as that. I assure you that there is no signal being sent to anyone.
Sometimes I just include a link to cite a source for a point that I am trying to make. When I do that, I like to make the link span a whole word or series of words, so that people will infer that the link is supposed to relate to the assertion.
If, by contrast, the linked article has nothing to do with the point being made—if, in other words, I am including it as a mere “Easter egg” instead of as documented evidence—then I attach the link to merely one letter or one punctuation mark. I do this not to “hide” the link (what would be the point of hiding a link), but just so as not to confuse the reader into supposing that the link has anything to do with the substantive point being made.
If you do not enjoy the Easter eggs, then my advice is not to click on them. As I said, they are never especially related to the point I am making, so you will not miss any important context if you simply ignore them.
Most normal people simply post “OT,” and provide a simple link in full.
That you do this “for your own benefit” really does not cut why you would go to such greater lengths.
In other words, your excuse does not hold water.
But you be you.
… and the “v” of Josh Marshall is more of a rotten egg than an Easter egg…
Further, the concept of Easter eggs are that they are hidden (you contradicted yourself), and one wouldn’t know the message or it’s banality unless they were clicked through.
Some of your hidden items are not banal at all, even though most are.
Bizarre.
No doubt.
And as I mentioned, it is only Greg that does this, and the large (very large) majority of these “eggs” are political — and Sprint Left political at that.
This IS a patent law blog. Why he “feels” the desire to trot out his nonsense, and to do so surreptitiously, is just not believable for his asserted “mere amusement.”
Clearly, a link is provided to be followed, and as Greg is already aware of what awaits at that “to be followed,” it is not for him to do the following. Ergo, he IS signaling others – no matter how he may deign to deny it.
The links are only one part of an elaborate code that the Sons and Daughters of Almighty Soros have been utilizing for years. Don’t bother trying to break it. The code crosses multiple platforms and media types.
SDSm# 2341.345.62r[access]
There is no “code,” as your own fantasy revelation on a newer thread would have made abundantly clear to you.
Do you ever get to get out of that basement, Malcolm?
Tell it to PatentMom, Billy (“Are they sending secret messages to each other?”)
How dense can you be Malcolm? Clearly one can send signals without the ‘elaborate code’ that you added in your comment.
Not having ‘elaborate code’ does NOT mean that signaling is not going on.
Get out of that basement. Breathe some fresh air.
Ah, Prophet. You think I was being serious? I was making fun of someone needing to hide links. Bless your heart!
PM,
Had those links been of the “Right” (heck, even of the Center), Malcolm would have been patting you on the back for questioning why Greg plays his ‘hidden’ signaling game.
But since you point out something that casts a shadow on Greg (and his typically Sprint Left messages), Malcolm is inexorably compelled to try to belittle you.
(My first attempt did not put my comment in reply to yours. Trying again.)
Of the current 12 active judges, only six judges list a technical background in their bios. Of those six, the bios of only two of the judges indicate any substantial experience in prosecution. Those two are J
Judges Newman and Lourie. (They are also the only two judges whose technical background is NOT electrical engineering. I believe both are chemical.) The remaining six judges with a technical background indicate a litigation background in their bios.
So, of 12 active judges, only two have substantial experience in patent prosecution. Maybe Judge Newman dissents because, rather than being an “obnoxious gadfly,” she is one of the two judges most knowledgeable regarding the subject matter and how it impacts innovation.
Although the jurisdiction of the Federal Circuit is not limited to patents, it was created to bring uniformity to patent law. It is sad that over half of the active judges seem to have no experience in patent law.
“ Maybe Judge Newman dissents because, rather than being an “obnoxious gadfly,” she is one of the two judges most knowledgeable regarding the subject matter and how it impacts innovation.”
Maybe this script was tiresome bs ten years ago when it was first recited here by commenters like yourself who have never demonstrated any nuanced or clear understanding of technology or patents but who just gripe whenever a patent is invalidated or wave pom poms whenevet Newman’s name comes up.
She’s 95 years old (?!?!) and she should have retired twenty years ago. And she’s not the only one who should have retired. Life tenure for Federal judges is (and always was) a terrible idea.
The CAFC, by the way, is not limited to patent jurisdiction. Not are patent disputes limited to the CAFC. On top of that, having “patent prosecution experience” is certainly not a necessary experience for a Federal patent judge, just as it is surely not necessary for them to have experience registering trademarks or piloting a boat from one continent to another.
Lastly, it should go without saying but the most relevant “experience” in most computing cases is not “writing software” but rather in topics like “sorting a pile of old mail” or “determining who wants to buy my bike.”
Did you not read the entire comment? My last paragraph notes that jurisdiction is not limited to patent law. But, it was a reason the court was created. Since it is not a general jurisdiction appellate court, one would hope to have more people familiar with the specific area of law.
How do you know what I do or do not do whenever a patent is found invalid? I have prepared opinions regarding the validity/infringement of third-party patents. You presume a lot.
What is this alleged “nuance” you presume you have that others do not? Others have tried to educate you before that US patent law does not require that the invention be better, just that it be different. THAT is a nuance you either cannot see, or refuse to see. It is still part of the process of progress. Not all steps are forward. Some may be sideways, and yet ultimately lead to an innovation forward.
PM – consider the source (it is Malcolm, after all).
Of the current 12 active judges, only six judges list a technical background in their bios. Of those six, the bios of only two of the judges indicate any substantial experience in prosecution. Those two are Judges Newman and Lourie. (They are also the only two judges whose technical background is NOT electrical engineering. I believe both are chemical.) The remaining six judges with a technical background indicate a litigation background in their bios.
So, of 12 active judges, only two have substantial experience in patent prosecution. Maybe Judge Newman dissents because, rather than being an “obnoxious gadfly,” she is one of the two judges most knowledgeable regarding the subject matter and how it impacts innovation.
Although the jurisdiction of the Federal Circuit is not limited to patents, it was created to bring uniformity to patent law. It is sad that over half of the active judges seem to have no experience in patent law.
What makes this so interesting is, of course, Joe Biden.
I love Judge Newman’s in-depth institutional knowledge that some of these young whippersnappers in their 50s and 60s don’t possess.
I instantly thought of this:
link to youtu.be
Agree. One of the best (and most critically important) parts of her opinions is the journey through patent / IP history she takes the reader on.
Back to the future never sounded so good.
Thanks for this post. It’s the only substantive commentary I’ve seen since the Newman story broke.
The main objectively verifiable criticism I’ve seen about Judge Newman is that she’s taking much longer than her colleagues to get opinions written. The numbers at pp. 2-5 of the March 24 order suggest that she’s extremely slow compared to her colleagues. link to cafc.uscourts.gov The district court complaint boasts that she’s written 4 opinions recently. Two of the four issued 15 months after oral argument. To be fair, one was a dissent, so we don’t know when the majority was ready. But she’s the only one who consistently takes this long to write opinions.
The numbers in the post and in the FedCir order suggest she’s either too slow to do the job of an active judge or has just gotten extremely backlogged. If it’s the latter, and if that’s all that’s going on, then maybe keeping her off of panels for a bit longer would let her catch up.
People are focusing on these workload statistics because there’s an understandable hunger among practitioners for information and analysis about the situation involving Judge Newman, and these statistics are the only “objectively verifiable” information (to use your term) that’s publicly available at this point. The result is that this workload information keeps getting churned around, analyzed, fed into AI language models, etc., to try to come up with some better understanding.
But when you plot her output against the federal judiciary as a whole, including judges in the regional circuits, she at worst would likely fall slightly to the left of the mean of the bell curve. And there have been (and still are) many other federal judges with far worse productivity statistics, including some in the district and circuit levels who literally sit on cases for years without rendering decisions, and no one has ever gone after them for judicial “disability.” This is because the speed at which judges render decisions is not indicative of their fitness to serve in a judicial capability.
The speed of Newman’s decision making would at best be correlative with far more important other factors like cognitive decline. As a result, the “disability” claim against Newman will stand or fall based on information that’s not available publicly pertaining to cognitive and physical capabilities and overall fitness to serve as an Article III judge. Maybe that information is compelling, maybe it’s a smokescreen, who knows. But in the end, the productivity and output statistics people are harping on now will, at best, serve as little more than a tertiary factor in the overall analysis.
+1
Why bother with that link?
I don’t think the judiciary as a whole is the right comparison, at least if you mean the time from oral argument to decision. Other circuits have different caseloads. If the Federal Circuit had a backlog of thousands of immigration appeals, all the decisions would take longer to issue. The March order suggests that Newman’s doing less than half the work of an active judge right now. I don’t actually know what the numbers would show, but I take the point that Judge Newman’s delays probably aren’t terrible if you compare them to some regional circuit judges. E.g., this seven-years-delayed 11th Circuit ruling was a story back in October. link to talkingpointsmemo.com
You’re probably right that the claim will stand or fall on medical-type information that isn’t public right now, and that for all we know maybe it’s compelling or maybe it’s a smokescreen.
I appreciate the response.
Don’t rely on the orders — they are clearly being contested.
Also don’t count on the medical records — those too are being fought over.
It is amazing. My first husband was going with a married woman,had 5 of his children. He then married me. Later finding out when my son was born they were his brothers and sisters.
Poor Princess Diana. Charles did the very same to her. Imagine my life was just like poor Diana’s without the wealth.
And later like another 3 degree separation story my exs girlfriends brother. He almost killed me in his police car.
I hope John Grisham gers to write my story, before it hits the big screen. That’s after it hits the Court.
It is amazing. My first husband was going with a married woman,had 5 of his children. He then married me. Later finding out when my son was born they were his brothers and sisters.
Poor Princess Diana. Charles did the very same to her. Imagine my life was just like poor Diana’s without the wealth.
And later like another 3 degree separation story my exs girlfriends brother. He almost killed me in his police car.
I hope John Grisham gets to write my story, before it hits the big screen. That’s after it hits the Court.
>If the Federal Circuit had a backlog of thousands of immigration appeals, all the decisions would take longer to issue.
Depends on how the stats are measured. Notice of appeal –> decision or hearing –> decision. If it’s the latter, I’d hope the exact opposite were true.
Even if you factor in the number of cases-per-judge, I suspect you’d still find that Newman is not outrageously slow across the entire federal judiciary. It’s a fallacy to assume that high judicial caseload always means slower output. With some judges that’s certainly true, but in my experience, it’s often the judges with lower caseloads that are slower to issue decisions. This is likely because slower judges don’t have the same internal processes and discipline as busier judges to efficiently manage their calendar and get decisions out in a timely fashion. Add to that the fact that Article III federal courts typically do not have rules requiring that decisions be issued in a specific timeframe, and you end up with a large amount of variability.
In any case, even if Newman was 2x or 3x slower than the statistics actually showed, that still wouldn’t show a judicial “disability.”
I don’t necessarily disagree with any of this, but whatever a comparison to the rest of the judiciary might show, Newman seems “outrageously slow” compared to her colleagues. That seems highly relevant, even if it’s unclear what follows from that.
I don’t know at what point slowness is a “disability” or evidence of disability. Rules 4(b)(2) and 4(c) of the Federal Circuit’s Rules for Judicial Conduct and Disability say this under the heading of “Misconduct and Disability Definitions”:
—
[4(b)(2)] Allegations About Delay. Cognizable misconduct does not
include an allegation about delay in rendering a decision or
ruling, unless the allegation concerns an improper motive in
delaying a particular decision or habitual delay in a significant
number of unrelated cases.
[4(c)] Disability. Disability is a temporary or permanent impairment, physical or mental, rendering a judge unable to discharge the duties of the particular judicial office. Examples of disability include substance abuse, the inability to stay awake during court proceedings, or impairment of cognitive abilities that renders the judge unable to function effectively.
link to uscourts.gov
“the speed at which judges render decisions is not indicative of their fitness to serve in a judicial capability.”
Yes; that.
The highest quality writing takes a little longer.
Always has. Always will.
CAFC colleagues, quit yer b.i.t.c.h.i.n.g. and get the hell b.a.c.k. to the people’s work.
“the speed at which judges render decisions is not indicative of their fitness to serve in a judicial capability.”
All you young associates paying attention to these precious pearls of wisdom? Be sure to recite a variation of this quote next time your boss asks you for the draft they wanted yesterday.
Because that context is so very similar…
/S
+1
>To be fair, one was a dissent, so we don’t know when the majority was ready.
That probably generalizes. Cases statistics probably should be adjusted for the presence/absence of dissents (maybe also for concurrences). Because 1) it’s unclear who to blame; and 2) even if the bulk of the work can be done in parallel, I’d hope there was an extra circulation step at the end of the process.
OC,
Your generalization probably doubles down then on a driver to be like the other fire-hosed simians.
Group think and herd mentality is bad enough — efforts to force the same should be looked at as plain E V I L.
Exactly
Exactly
Facts just the facts mam.
Although the facts are a sad commentary to greed, I refuse to sit back and allow greed to win.
Winners never quit. And if those that were hired knowing what was before them, tough.
One of the many letters for last. Don’t miss out on the dates. Very special.
Looks like you got my Mother’s Day card!
dcl,
You should like the substantive commentary at PatentDocs (of course, this is also in the publicly available material, but you are likely going to want to read Newman’s attorney’s filing — which Malcolm and the other anti’s won’t deign to do).
Writing 2% of the opinions sure seems to me like she isn’t pulling her weight. At 95, why burden yourself with the unnecessary pressure of being a full Judge. I don’t understand why she won’t just take senior status. Just take the cases you want and issue opinions when you want. It is unfair on her fellow judges for them to cover HER opinions responsibilities as well as their own.
Mike,
Your “”2%” is incomplete (you fell into the “only majority writings matter” trap).
Had you actually used the full sets of writings, you would have seen that (on a base ten basis), the max “over” of 1.9% is by Stoll, four others have between 1.3% and 1.7% over, and FOUR judges are below “their share,” with Chen the worst at 0.5% below Newman.
Another way of looking at this is that all the other judges are not pulling their weight with vigorous dissents.
For the total listed dissents, Newman (35.4), Reyna (20.0) and Dyk (16.9) are the only ones pulling their weight.
Stoll barely breaks six percent (6.2) and mindless follow-the-herd judges of Chen, Prost, Hughes (4.6), Moore, Lourie (3.1) and bottom of the barrel Taranto (1.5) are the slackers.
“Another way of looking at this is that all the other judges are not pulling their weight with vigorous dissents.”
Try to believe it, folks. If we didn’t have this caricature of a reactionary twit here to mock, we’d have to make him up. Hard to top this, though.
As usual Malcolm, your post is meaningless.
You may have thought that you had a point to present, but all that came across was just another apoplectic nothingburger.
Wow. How deceptive of you. Mike, writing the dissenting opinion–as you know–is more work as you have to write it alone.
Wow. Just open lies.
Why is her suit being litigated by a political group rather than normal attorneys?
It is a civil rights group with really really good appellate attorneys. The U.S. justice system is becoming increasingly corrupt and antithetical to American principles. Ordinary attorneys cannot achieve predictable results. Now you have to have constitutional attorneys.
Josh: +1
Because this is all about politics, specifically the politics of keeping an incompetent patent huffing hack on the CAFC until the hack can be replaced by someone other than Biden.
Keep that anti-patent freak flag of yours a-flapping.
Wow, I actually agreed with one of anon’s comments.
How plausible does it really seem to you that (Bush appointee) Kimberley Moore is gunning to open a slot for Joe Biden to fill? Reaching for a political explanation for the observable facts of the situation rather strains credulity.
Do you really want to know what strains credulity?
“B”
Hiding a link to Malcolm’s favorite nonsense site of LGM that highlights a tweet from Yglesias.
Talk about three strikes all at once…
Moore and her fellow judges on the CAFC are just doing their jobs. It’s Newman’s supporters who have the most at stake here, obviously, and their political leanings are well-known (a few exceptions dont change the basic facts).
Funny how you use the words “basic facts,” and have no idea what those words mean.