by Dennis Crouch
The Federal Circuit Special Committee has released a 100+ page report that recommends Judge Pauline Newman be suspended for her refusal to comply with the committee’s order that would permit an independent doctor conduct a mental or physical examination. The proposed suspension for “one year or until she complies.” This report will be delivered to the Judicial Council that will make its own decision. I expect that the Judicial Council will agree with the sanction.
The committee consisting of Chief Judge Moore, former Chief Judge Prost, and Judge Taranto concluded that it had authority and a reasonable basis to order medical examinations and records from Judge Newman. And, her refusal to cooperate constitutes misconduct with no good cause shown. Her arguments attempting to justify her refusal were each addressed and rejected by the committee.
Most pointedly, Judge Newman had provided her own medical report purporting to show her competence. The committee rejected that report as inadequate — giving it “no weight”:
- Source of Expert: The neurologist was chosen and engaged by Judge Newman herself, rather than being an independent expert selected by the Committee. This raised concerns about impartiality.
- Limited Scope: The report indicates only a limited examination was performed, not the comprehensive medical and mental health evaluations ordered by the Committee.
- No Opportunity to Question: The Committee and its experts had no ability to question the doctor, assess credibility, or probe his evaluation methods.
- Incomplete Conclusion: The report concludes there is no disability, but does not seem to thoroughly evaluate Judge Newman’s mental fitness to fulfill her judicial duties.
- Contrary Evidence: The report appears to ignore or downplay the contrary evidence of cognitive issues cited by the Committee.
In essence, the Committee found the report lacked credibility and thoroughness. Judge Newman had raised additional issues:
- Due Process and Recusal: Judge Newman argued the proceedings violate due process and required judicial recusal. The committee found they follow appropriate procedures and do not violate any of Judge Newman’s rights.
- Bias Arguments: Judge Newman alleged bias by the Judicial Council and Committee. The committee found no evidence of bias in the Council’s actions to suspend case assignments or the Committee’s prior orders.
- Staffing/Resources Arguments: Judge Newman claimed she was deprived of necessary staff and equipment. The committee found no merit to these arguments.
- Transfer Request Arguments: Judge Newman requested the matter be transferred to another circuit. The committee found no basis for such transfer.
- Cooperation Arguments: Judge Newman asserted she has cooperated and the orders were defective. The committee found she clearly refused to undergo medical exams and that the orders were proper.
- No Reasonable Basis Arguments: Judge Newman argued the committee lacked reasonable basis for orders. The committee pointed to staff concerns, case delays, and expert recommendation as providing reasonable basis.
July 31, 2023 Report and Recommendation
Newman’s separate lawsuit in D.C.Circuit seeking a declaratory judgment has not really moved. The Special Committee indicated the view that their process was the proper venue rather than district court.
* The image above comes from the Montreal Cognitive Assessment (MOCA) that was given to Judge Newman by her neurologist. MOCA-Test-English. It was only partially completed because she had a broken wrist at the time and so was not able to trace the dots, draw the cube, or draw the clock.
This is a Constitutional crisis. It is also a travesty of justice. Being committed by a court which controls patents, the USPTO, among others. The most recent transcript shared with the cardiac event redaction painfully explained is simply shameful. The Committee and this entire Court should not just be ashamed of itself, it should recognize that it violates the oaths taken, when accepting those positions of power. It reflects poorly on all of us. Shame.
It’s not Newman who should be suspended for a year.
The graphic at the head of the post is missing the kangaroo …
+1
No; 11 kangaroos . . .
I have no opinion about Judge Newman’s mental state. But she is an Article III judge. Acc. to the Constitution, Article III judges “shall hold their Offices during good Behaviour.” Other than impeachment by the House and removal by the Senate, the Constitution has no other mechanism for removing a judge.
So what authority does this “Special Committee” or any other member of the CAFC have over her?
My feelings exactly. The House should impeach her if she is incompetent. Otherwise, this committee seems to be outrageous.
On no! Grandpa Tuckerluvver with the lengthy rap sheet is outraged! Watch out, kids.
You are doing that “one-bucketing” thing (again).
“I have no opinion about Judge Newman’s mental state after not reading a long report signed by her co-workers detailing her erratic harassing incompetence. But I do have some completely vapid remarks about the US Constitution! I am not a crank and not just another rightwing loser soaked by in flop sweat.”
“a long report signed by her co-workers detailing”
LOL – the perps provide a self-serving document, and Malcolm goes “what’s wrong with that?”
I agree that the whole procedure is problematic with regard to Article III judges and perhaps a challenge to the constitutionality of the Judicial Improvements Act of 2002 (Pub. L. 107-273, div. C, title I; 28 U.S.C. Pt. I, ch. 16, sec. 351 et seq.) could be mounted on the grounds that suspending the judge and assignment of no new cases to that judge amounts to “a de facto removal” that goes completely around the impeachment process. (No doubt the court would regard the assignment of cases to be a purely internal affair; but in that case no Council proceedings would really be needed.) Also, the possibility of the Judicial Council being able to certify disability of a judge so that a “substitute” judge could be nominated and appointed (28 U.S.C. 372) reinforces that perception. Yes, there is one provision for referral by the Judicial Conference of the United States to the House of Representatives for potential impeachment inquiry where warranted, but that doesn’t excuse the lesser penalties being already imposed.
Personally, I find the review of a judge by the very same circuit to be ripe for potential abuse, as perhaps might be occurring here. First hand witnesses and deciders of fact should not be the same group of people if there is to be any impartiality. A Council from a nearby but different circuit would be more fair and impartial, since the judge being reviewed and the Council doing the reviewing would not have daily dealings with each other. But that’s not how it seems the law is currently written.
Maybe one of the other Federal appellate courts can step up and adopt Judge Newman since she is so incredibly brilliant and totally not a paranoid harassing narcissist who is fading fast into the twilight.
There literally is zero evidence of “unfairness” or “impartiality” here. 95% of the griping is from online fanboys who see Newman as some sort of savior for the rotten patent claims they want to assert or draft for their know-nothing rube clients.
^^^ but Malcolm is not anti-patent (as he is want to gaslight)…
FYI drawing the cube and the clock is something that people with mild cognitive impairment or dementia cannot do.
RE: Source of Expert: The neurologist was chosen and engaged by Judge Newman herself, rather than being an independent expert selected by the Committee. This raised concerns about impartiality.
Impartiality concerns would also be raised by the Committee being the ones to select the neurologist. If a single “expert” neurologist is to be used, then the selection should be someone with whom both parties agree, not either one of the parties unilaterally.
RE: Limited Scope: The report indicates only a limited examination was performed, not the comprehensive medical and mental health evaluations ordered by the Committee.
The scope of the mental health evaluations to be performed should likewise be agreed to by both parties, not either one of the parties by themselves. If she is truly competent to serve, Judge Newman does herself no favors by undergoing only a limited evaluation.
RE: No Opportunity to Question: The Committee and its experts had no ability to question the doctor, assess credibility, or probe his evaluation methods.
I agree this is very problematic. The neurologist should have been available for cross-examination by the Committee.
RE: Incomplete Conclusion: The report concludes there is no disability, but does not seem to thoroughly evaluate Judge Newman’s mental fitness to fulfill her judicial duties. – and –
Contrary Evidence: The report appears to ignore or downplay the contrary evidence of cognitive issues cited by the Committee.
These could have been properly addressed if the neurologist had been made available for examination. Not doing so, looks bad for Judge Newman.
RE: The committee rejected that report as inadequate — giving it “no weight”.
“No” weight perhaps goes too far, but is understandable given the Committee’s inability to examine the expert.
RE: Transfer Request Arguments: Judge Newman requested the matter be transferred to another circuit. The committee found no basis for such transfer.
This may be the crux of the whole proceeding, since Judge Newman thinks many of her colleagues are out to get rid of her. Change of venue to a different circuit would be appropriate and would probably elicit more cooperation out of her. Indeed, it seems that should be the normal procedure for any judicial competency hearing.
You may be late to the party and not recognize the initial “leave quietly or we will make your life he 11” beginning tone.
As impartial a response on the evaluation as you may point out, it is more than (far more than) the cabal deserve.
>I agree this is very problematic. The neurologist should have been available for cross-examination by the Committee.
It would have been grossly inappropriate due to both privledge and privacy concerns. As long a board-certified doctor signs off on her mental competency, that should be enough. That’s the standard virtually everywhere else.
My understanding is that the artists want to stop the ability of AI models being trained with their work.
Perhaps you meant to reply to the comment string below, and I certainly can see the “Hollywood” types VERY concerned with their roles basically removed by generative AI.
This though would be a concern on both ends – inputs and outputs.
Anyone understanding the nature of how generative AI works though would quickly realize that the ‘argument’ on the input side is bogus.
>Anyone understanding the nature of how generative AI works though would quickly realize that the ‘argument’ on the input side is bogus.
It definitely is. That is one reason it is so interesting as the Biden admin appears to be taking the side of the artists.
OldCurmudgeon: Privilege and privacy concerns are not a concern since Judge Newman herself was the one who submitted the neurologist report as evidence of her alleged competence. If she wanted to maintain privilege and privacy she shouldn’t have introduced it into evidence in the first place. You can’t have it both ways. If she wants that report to be given any weight, then Committee evaluation of the neurologist’s asserted expertise and of the criteria, methods and tests carried out need to be part of the package as well.
OT somewhat, but this is interesting. Weird that they are not challenging the output of the AI but the input of the AI. Our wackadoodle VP supports this lawsuit.
link to msn.com
Meh, this from the article tipped me off that the author simply does not have a good grasp of the subject (sure, there are a few correct statements, but far too many incorrect ones, and this will cause more confusion than clarification on its face):
“For a work to be included in the fair use category, it needs to meet several criteria: the purpose and character of the use; the nature of the copyrighted work; the amount and substantiality of the portion used and its effect on the market for the original work. ”
anon, it is interesting. The VP has already mentioned this and part of the strike is about this issue.
It is not a meh. But an interesting issue.
Oh, do not get me wrong – the issue is interesting.
My comments were on the article that you presented – the article leaves A LOT to be desired.
I thought most of these lawsuits were based on the DMCA’s copyright management info requirement vs. “copyright infringement.” The difference technically takes fair use off the table (though perhaps it’s still there via the ‘protected by copyright’ limitations in the DMCA).
I can image some sort of moral rights / trademark issue wrt prompts like “draw a picture of X in the style of [famous living artist],” though I’m also leary of IP rights in something as nebulous as a style (OTOH, some of the dissents in the Warhal case seemed to accept the idea)
Code of Judicial Ethics for US Judges
link to uscourts.gov
Canon 2: A Judge Should Avoid Impropriety and the Appearance of Impropriety in all Activities
(A) Respect for Law. A judge should respect and comply with the law and should act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary.
Canon 3: A Judge Should Perform the Duties of the Office Fairly, Impartially and Diligently
The duties of judicial office take precedence over all other activities. The judge should perform those duties with respect for others, and should not engage in behavior that is harassing, abusive, prejudiced, or biased. The judge should adhere to the following standards:
(C) Disqualification.
(1) A judge shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned, including but not limited to instances in which:
(a) the judge has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;
…
(d) the judge or the judge’s spouse, or a person related to either within the third degree of relationship, or the spouse of such a person is:
(iv) to the judge’s knowledge likely to be a material witness in the proceeding;
Why are you dragging Randy Rader into this?
Obtuse.
Is it deliberate?
Didn’t he do that himself?
… sure, if you focus on ad hominem rather than the content of what he offers.
As always, your choice.
What America needs most right now is for one of the members of the CAFC to do the good, right, moral, and noble thing by standing up against this evil, vile, unjustified attack on one of their colleagues.
What America needs most right now is the CAFC’s own Mr. Smith Goes to Washington:
link to youtube.com
Reminds me: what do you want for your ninth birthday?
Your long-overdue permanent banishment from PatentlyO.
+1
+1
Joe Biden. John Fetterman. Diane Feinstein. All still have their jobs. Stare decisis requires Judge Newman to retain her job, too. Second, requiring her to submit to a cognitive exam (and only her), presupposes that she has a mental defect. Being late with work or even being lazy, especially in a Government job, is not evidence of mental defect. I would not submit to a mental exam either.
Read the report. This isn’t about “being lazy” or merely “being late.” Some judge is always going to be the fastest and some will be the slowest. This isn’t about that. Have you spent a lot of time with 96 year old people?
“I would not submit to a mental exam either.”
Why not?
Take the initial introduction of the matter to Judge Newman on its face value:
“Step down or we will make your life into a living H e 11.”
And then, “you will comply with OUR demands on OUR timing.”
She rightfully said F U, and HAS complied with a mental exam.
This (entirely predictable) ‘report’ by the very Perps aiming to railroad her should be given its due weight – that is to say – nothing.
“ She .. HAS complied with a mental exam.”
LOL
Do you share the same doctor, by any chance? You two seem to have a lot in common.
I am sure that you intended that as an insult (and as typical for you when it comes to being anti-patent, you have given me instead a rather high compliment).
“Joe Biden. John Fetterman. Diane Feinstein. All still have their jobs.”
Wow, that’s an exhaustive list of … nothing?
“Stare decisis requires Judge Newman to retain her job, too”
And that guy Bruce from Walgreens who falsely accuses the security guards of trying to set fire to the building. He gets to retain his job, also!
After all, if a bunch of appellate judges can require a 96 year old judge in their ranks to (omg) take a mental health test then YOU MIGHT BE NEXT!
Next thing you know people will be judging you for being biased against blacks. Watch out! YOU COULD BE NEXT!
“The majority can make the minority do whatever they want! They are the majority!”
Views like THAT are the reason the US is a republic, NOT a democracy.
Absolutely correct, PM.
(as any decent US attorney would already know)
“ the US is a republic, NOT a democracy”
LOL
Seriously? This ridilous meme literally continues to exist only to flag the non-ironic utterer as a childish script-reciting dolt. Congrats.
nice Malcolm – pure ad hominem from you that impugns you rather than your target.
As usual.
Say “la vie.”
So, the truth is a meme?
… as is often the case, nowadays.
“Being late with work or even being lazy, especially in a Government job, is not evidence of mental defect. ”
Based. 100% based. Based and truthpilled. Indeed, that is evidence of clear mental faculty. The only evidence of record that indicates such besides a basic medical report which in these circumstances unfortunately means little. However, in this context it appears that she was one of the crazies that wasn’t being late or lazy at her gov. job for years. Then all of a sudden started doing so. I doubt she all of a sudden saw the light in her twilight years that she shoulda been draggin up in thare all all along. Instead I think it’s schizophrenia.
“then all of a sudden”
No evidence has been provided to support that assertion.
It’s in the report if you’d read it. Her work output dropped a bit back in fair sudden fashion, and she stopped being as attentive at oral args said one of the court dudes, as well as other related things.
Do not confuse accusations as ‘must’ be true.
As I have stated several times now, the report is self-serving nonsense by the same three perps that first approached Judge Newman with the “offer” of, ‘Step down quietly, or we will make your life H e 11.’
I suggest Newman “supporters” read through the email exchange of Exhibit 6. Acknowledging that this likely represents a “bad day” (or two), I find it deeply disquieting. Not for the sake of the court or its petitions, but for the judge’s sake.
That’s some Sarah McPherson stuff right there.
Private share was allowed criminally on my phone. Phone #
843-863-9283 was criminally accessing my phone data. Hey Jon GFY.
If that be the case, it might be schizophrenia starting to disorder her lived life experience and that of those around her.
Disturbing: The stuff starting around page 33 of the report.
Even more disturbing: Starting at page 117 of the PDF is a transcript of a deposition of one of Judge Newman’s clerks. The clerk takes the 5th in response to every substantive question.
(wondering who advised the clerk to take the 5th, but the clerk would take the 5th if asked that)
Thanks for pointing to the report at around page 33; if true, these multiple reports of Judge Newman being very confused about where various files are located and about previous conversations sounds like someone in maybe early stages of Alzheimer’s. It’s tragic. Also that first deposition in the attachments is bonkers. Is that correct, that you can invoke the fifth amendment in a civil proceeding and not explain why because the explanation is privileged? If so, it seems like more people would be using that to avoid answering any question any time. But this investigation and further proceedings should absolutely be conducted by independent third parties. Even if the Federal Circuit judges are truly impartial, it sure doesn’t look that way from the outside.
Yeah bros, upon review it does seem that she does require the return of “her information” on “her chambers computer” and has not been trusting her trusty blanked out employee.
What is rather sad however is that all these learned people around her cannot spot schizophrenia when it is smacking them in the face.
I will bet 1000$ it is schizophrenia and not merely Alzheimer’s, though it may be both. When you start getting into the persecutory thinking, that is thinking someone isn’t trustworthy or is “out to get you” (complete with delusions/hallucinations etc.), when they plainly are not, you’re into schizophrenia almost every time. Could possibly be schizoaffective, but near surely is schizophrenia. If she is also reported to have mania or depression (especially depression) then it is likely schizoaffective, but since there does not appear to be any indication of that as yet, tis likely just schizophrenia. There’s a couple other possibilities, but when it looks like this, it’s usually the schizophrenia.
Also, fun fact, the “newman files” that are being discussed are actually just risque photos of MM, they’re not even required for her job technically speaking.
However, she also doesn’t seem to understand the concept of a network drive. She is, after all, pre-boomer.
One thing that is unclear to me however, is why all this is happening over email, and what all would have been discussed irl or on the phone.
Also shout out to “dissembling” users lolol!
What is rather sad however is that all these learned people around her cannot spot schizophrenia when it is smacking them in the face.
Maybe it is schizophrenia. Maybe it is dementia. The two are not mutually exclusive, so maybe it is both. There is nothing wildly implausible about the idea that a 96-year old might be mentally infirm in a manner that would preclude her serving as a federal judge, especially a federal judge in active service.
On the other hand, neither you nor I are in possession of any sort of first-hand evidence. The first-hand evidence in which I am in actual possession—the hard, undeniable evidence that I can trust absolutely without relying on anyone else’s say-so—is the continued judicial work-product that Judge Newman issues. The real test of a judge is the quality of his or her judgments, and Judge Newman’s written output remains indistinguishable now from her output 10 years ago, or 20 years ago, or 30 years ago. That is what I know about Judge Newman’s mental fitness. The rest is all hearsay.
Mind you, the “hearsay” of her colleagues on the bench is a meaningful point of evidence. They know her better than I do, so they are in a much better position than am I to evaluate whether she is “losing it” (so to speak).
You know what would be a great way to sort this out? Put all of the facts in front of a genuinely neutral arbiter, and let that arbiter decide. Why not do so, and let the chips fall where they may?
If the neutral arbiters think that her case should be referred to the House for impeachment proceedings, I dare say that most people of good faith would second any such recommendation. Meanwhile, if the neutral arbiters find no impediment to her continued service, then people of good faith should welcome Judge Newman’s return to service.
“On the other hand, neither you nor I are in possession of any sort of first-hand evidence.”
That email chain seems rather “first hand”. Not sure if you mean even more “first hand” than that or what.
“The first-hand evidence in which I am in actual possession—the hard, undeniable evidence that I can trust absolutely without relying on anyone else’s say-so—is the continued judicial work-product that Judge Newman issues.”
Schizophrenia doesn’t always affect your work product directly. Just like my disordering of my lived life experience doesn’t affect my work directly and doesn’t affect most professional’s with whichever disorder directly.
What it does is creates disordering of your own lived life experience and a disordering of the lived life experience of those around you. See for instance the email chain as beyond ample evidence of the disordering effects suffered both by herself and by her colleagues dealing with the “missing files/comp/phone”. She is obviously quite distressed. And her staffer having emotional episodes and about having to quit/be fired because of all the drama and all, as well as judge Moore (and no doubt others) becoming beyond exasperated because they don’t recognize the schizophrenia and think that it’s just Newman actually asking for the files or perhaps her having “gone crazy” and nobody wanting to tell her that. That disordering of their life experiences then might, or might not, affect the work product. It can definitely delay it etc. Jobs like examination/judging it likely wouldn’t be affected all that much directly, especially when the people doing the jobs are already experienced, though it’s good to keep an eye on it. But we do see evidence that it is delaying her work.
“That is what I know about Judge Newman’s mental fitness. The rest is all hearsay.”
Bro them emails aren’t hearsay. That’s persecutory delusion, and a whole lot of disorder (hurt feelings/large bad feelings etc.) I’ve seen it irl in a couple of people with schizophrenia. In her case, it’s the “they’re spying on me” and/or “conspiring against me” and/or “taking my stuff” sub-type. She thinks her staffer is/was spying on her, and potentially other people are conspiring/plotting against her as well.
The drama and emotional toil this sort of thing puts her co-workers through is large and is a real thing that must be considered.
“You know what would be a great way to sort this out? Put all of the facts in front of a genuinely neutral arbiter, and let that arbiter decide. Why not do so, and let the chips fall where they may?”
I couldn’t say. Probably because mostly there is a huge lack of understanding surrounding disorders, set aside acceptance of, and accommodation of. Further, in Newman’s generation especially (as well as MM’s), these kinds of disorderings are still super seen as “crazytown” (stigma) rather than what they actually are.
If anyone is reading this that works at the court, I strongly suggest that you at least pass this potential up the chain and strongly urge you to suggest to the chief judge that this is all it is, and for her to not be overly concerned about the the “missing files” any longer.
In either event, if she returns to service, she will need a wide array of support and reasonable accommodations being made, with others around her knowing there will be the occasional thing she does that will seem crazy to them/make them have large emotions.
Bro them emails aren’t hearsay.
The “appendices” to this report do not purport to be all the evidence in the record. They constitute the evidence that those who wrote the report decided to include. I have no independent means of verifying the authenticity of those e-mails, nor do I know that there are not other e-mails that would alter our interpretation of the e-mails that we have been permitted to see.
In case it is not clear, I really do not trust the process that has been carried forward so far. Let her colleagues stand as accusers only, not as both accusers and arbiters. Let her put her evidence in the record before a neutral arbiter, and her accusers put their evidence in the record before a neutral arbiter, and let the just result prevail accordingly. Anything less, I just do not trust.
I understand and share (a fraction of) your discomfort with the process here, but your one sided contortions here are an embarrassment.
This is an email chain provided by the chief judge of the CAFC. It should be considered presumptively authentic. And yes it could be incomplete, but that argument could be used to disqualify any set of evidence.
If you were actually concerned about the evidence being unimpeachable, you wouldn’t assume that Newman’s work product is her own. The alternative is a somewhat absurd theory (made marginally less absurd by her clerk taking the 5th in response to “can you tell us about [your] roll and your responsibilities?”), but if you’re going to act like this email chain might be fake then the fact that an opinion is posted in Newman’s name shouldn’t be evidence that she wrote it.
Why not say “this isn’t enough evidence” or “I need to hear Newman’s response” or even “no amount of evidence will make this unjust proceeding legitimate”? Demanding magical “I can trust absolutely without relying on anyone else’s say-so” evidence is beneath you and your objections to this process.
“but your one sided contortions here are an embarrassment.”
As Ben engages in his own one-sided contortions….
Lion, mature male, African or Asiatic. Black rhino. Dromedary. I hope you all got these, otherwise there could be serious doubts about your ability to practice patent law.
Ha!
OT, but of extreme interest to anyone with a passing interest of being objective and recognizing the (Sprint) Left Authoritarianism is a real (and really dangerous) thing:
link to open.spotify.com