Newman v. Moore: Intra-Federal Circuit Dispute Raises Multiple Cross-Disciplinary Issues

Jack Capizzi:  Welcome to today’s Federal Society virtual event. Today, July 26, 2023, we are excited to present Newman v. Moore: Intra-Federal Circuit Dispute Raises Multiple Cross-Disciplinary Issues. My name is Jack Capizzi, and I’m an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the speakers on today’s call.

 

At the halfway point of today’s program, I will post a CLE code in the chat box. Please write down this code, as you must provide it when you’re filling out the certificate of attendance form that you will be emailed within a few days. If you have any questions about CLE at all during the program or afterwards, please email [email protected].

 

After our speakers have given their remarks, we will turn to you, the audience, for any questions you might have. If you do have one at any point, please type it into the Q&A feature at the bottom of your screen, and we’ll handle your questions as we can towards the end of the program. With that, I’ll hand it over to our moderator today, who is Jack Park. Jack is of counsel with Strickland Brockington and Lewis and is the chair of our Professional Responsibility and Legal Ethics Practice Group. Thank you all for being with us. Jack, over to you.

 

John J. Park, Jr.:  Thank you, Jack. Just to short form my bio, I’ve been an active and reserve Army JAG. I’ve been big law, little law, solo. I’ve worked for the State of Alabama, the feds, and for the Heritage Foundation. This webinar concerns the imposition of judicial discipline and a specific instance of it. Earlier this year, reports circulated that Federal Circuit Chief Judge Kimberly Moore had initiated a complaint under the Judicial Conduct and Disability Act of 1980 against Judge Pauline Newman of her court.

 

In the case of Judge Newman, the allegations included the suggestion that she suffered cognitive and other health issues, resulting in her inability to properly discharge her duties as a judge. It was alleged that she improperly managed her staff, improperly disclosed medical information about another judge, failed to properly communicate with the Court concerning these allegations, accused -- accusations of interference by court staff with her phone and email communications, and last refused to cooperate with a neurological examination, to supply medical records, or submit a videotaped [inaudible 02:36] -- a videotaped interview.

 

Judge Newman’s counsel responded with a letter challenging the contention that she had improperly discharged her duties, alleged that the court had improperly withdrawn staff and IT support from Judge Newman, set out some procedural concerns, and requested that the matter be transferred to another circuit. On May 3 of this year, the Special Committee ordered Judge Newman and her counsel to refrain from public statements regarding the matter. It rejected the -- the request to transfer the case and reiterated its prior order that Judge Newman supply her medical records and submit to neurological examination.

 

On May 10, Judge Newman filed suit against Chief Judge Moore, two other federal circuit judges in their capacities as members of the Special Committee appointed by Chief Judge Moore to investigate the allegations and the Judicial Council of the Federal Circuit and its members, that is, all of the members of the Court, except Judge Newman. The complaint includes claims of improper removal in violation of the separation of powers, as well as violations of various constitutional rights.

 

Since the filing of the complaint, the committee has first narrowed the focus of the investigation to whether Judge Newman’s refusal to undergo examination, provide records, or sit for an interview constitutes misconduct and refused to reinstate her to the rotation for new cases. Judge Newman has requested a preliminary injunction reinstating her to her normal functions as a member of the Federal Circuit and, barring further disciplinary proceedings absent, transferred to another circuit. The district court has ordered the parties to mediation, which is scheduled for August 3 of this year, and stayed further consideration of the preliminary injunction motion pending the results of the moderate of the mediation.

 

Our panelists will address the significant questions raised by these events. And I will now introduce them -- I will introduce them to you as they are scheduled to speak. Our first speaker will be Professor Paul Gugliuzza, who’s at Temple University Beasley School of Law. He’s an award-winning scholar and teacher, and he specializes in civil procedure, federal courts, and intellectual property -- property law, with a particular focus on patent litigation. He’s widely published. Before joining the faculty at Temple, he was Professor of Law at Boston University School of Law, where he received the Dean’s Award in recognition of his teaching. 

 

His article, “The Federal Circuit as a Federal Court” received the annual best article award from the Federal Courts Section of the Association of American Law Schools. He has testified before the -- both the United States Senate and the United States House of Representatives on the topic of patent litigation, and his scholarship has been cited in nearly a dozen judicial opinions across all levels of the state and federal courts. He graduated summa cum laude from Tulane University School of Law. After law school, he clerked for Judge Ronald Gould on the U.S. Court of Appeals for the Ninth Circuit, practiced in the Issues and Appeals group at Jones Day in Washington, D.C., and served as a Visiting Assistant Professor at the University of Florida Levin College of Law. Professor Gugliuzza.

 

Prof. Paul R. Gugliuzza:  Great.  And thanks so much to Jack from The Federal Society for organizing this panel and for inviting me to speak and thanks to Jack as well, a different Jack, for moderating this discussion and for that overly flattering introduction. So Jack gave us a terrific summary in his opening remarks of, kind of, the procedural posture of the dispute regarding Judge Newman’s fitness to continue to serve as an active judge on the Federal Circuit.

 

And, in my remarks, I’d -- what I’d like to do is maybe try to provide some of the broader context for this dispute, drawing in particular on my background as a patent litigator and a professor in the field of patent law with the aim of hopefully making clear, particularly to those in the audience who might not specialize in patent law, three things in particular. One, why is this dispute so important? Two, why has it been so contentious? And three, why is it such a kind of sensitive topic for patent litigators to talk about?

 

Okay. So first, why does this dispute matter, right?  Well, obviously, public disputes over the alleged incapacity of an Article III circuit judge don’t occur every day, right? But on top of that, Pauline Newman is an iconic figure in the patent world. Not only has she been on the Federal Circuit for nearly 40 years, not only was she the first judge directly appointed to the Federal Circuit after Congress created the court in 1982, Judge Newman was instrumental to the very creation of the Federal Circuit. In her capacity as patent counsel for a large chemical company, Judge Newman testified before Congress and urged Congress to create a specialized court of appeals for patent cases.

 

We also shouldn’t ignore Judge Newman’s gender. Some of my own scholarship has explored there aren’t many women practicing patent law even today, much less in the 1970s and early 1980s, and actually even earlier than that, when Judge Newman was working in the field, right. So Judge Newman is truly a trailblazer in a lot of different respects. But that’s not to say Judge Newman’s career has been free of any controversy, which leads to the second point that I said I would discuss.

 

Why has this proceeding been so contentious? So one very basic point that’s worth noting, particularly for anyone in the audience who doesn’t follow the Federal Circuit closely, as a judge, Judge Newman has a reputation for dissenting a lot. And when I say “a lot,” I mean a lot. So by fortunate coincidence, I’ve actually been working on a project that studies the rate of dissent among Federal Circuit judges. And I can tell you that on average, from 2008 to 2021, a Federal Circuit judge will dissent in about 2 percent of their panel appearances, right. The average judge descends about 2 percent of the time.

 

Judge Newman dissents nearly five times as frequently. She dissents in about one out of every ten panel appearances. And, in fact, Judge Newman writes dissenting opinions more frequently than she writes majority opinions. So a judge who dissents a lot imposes more work on their colleagues, right, both because their colleagues must write a disproportionate share of the majority opinions, but also because their colleagues have to do the work of responding to the dissenting opinion in the majority opinion. In short, dissenting a lot, as Judge Newman does, is not necessarily a great strategy for winning friends among one’s judicial colleagues.

 

In thinking about the controversy underlying this dispute, or the context in which this dispute arises, it’s also worth noting that there’s an ideological component to this dispute, or the controversy, that I think is relevant to the disability proceedings involving Judge Newman. And when I say “ideology,” I don’t mean like your typical left/right, Republican/Democrat, Fox News/MSNBC political ideology. In fact, both Judge Newman and Judge Moore were appointed by Republican presidents. So when I say the controversy involves ideology, I’m actually referring to attitudes about the substance of patent law.

 

So Judge Newman, been on the Court basically for the entire time the Federal Circuit has been in existence. She is part of an original generation of Federal Circuit judges, most of whom have long retired, who considered it their mission to strengthen the patent system as an incentive for innovation. After all, strengthening patent rights was one of the reasons that Congress created the Federal Circuit in the first place. But general views about patent law tend to evolve over time in predictable cycles. So after periods in which there’s generally strong support for patent rights, which we had around the time the Federal Circuit was created in the early 1980s and for the first couple of decades of the court’s existence, after that period, right, the pendulum tends to swing in the other direction. And you start to see people blaming the patent system for various social and economic problems, for instance, in our current moment, high prescription drug prices, the notorious patent troll, right? All problems sort of -- critics lobbed at the patent system.

 

And these sort of pro-patent to anti-patent cycles tend to repeat every like two or three decades. And in our current relatively anti-patent moment, we’ve seen several legal developments that weaken patent rights. For instance, Congress has opened up new avenues for infringers to challenge patent validity in sort of streamlined administrative proceedings at the Patent Office. And we’ve also seen several Supreme Court decisions making it harder to get a patent and to show in litigation that a patent is valid and infringed.

 

Judge Newman, right, as well as, importantly, the members of the patent bar who support her, see these questions about her capacity to continue serving as a judge as kind of an attack on her particular substantive view of patent law, which valorizes patent rights as essential to encouraging innovation. So that’s kind of the ideological -- patent law specific ideological context in which this dispute is arising.

 

Okay. So then the third thing that I said I’d talk about—it’s an important controversial issue—why can it be hard for patent lawyers to discuss? So part of the reason is transactional. Judge Newman is not some random judge who sits on one of the 12 regional circuits, right? All patent appeals nationwide go to the Federal Circuit. And so patent lawyers don’t want to step on judges’ toes because who knows who’s going to be on your next Federal Circuit panel. It could be Chief Judge Moore, or if Judge Newman is reinstated, it could be Judge Newman. Indeed, because there are no district judges in the Federal Circuit, the circuit judicial council that will ultimately resolve the disability proceedings consists entirely of the active judges of the Federal Circuit, minus, of course, Judge Newman.

 

So that’s sort of the broader context of the dispute. And then, just to wrap up a little bit, maybe I should feel like I should probably sort of share my two cents about, what do I think about all this? I think more than anything, it’s just -- it’s just unfortunate, right?  On substantive patent law issues, in my view, I don’t think Judge Moore and Judge Newman are really that far apart. And in terms of Judge Newman’s proclivity to dissent, I don’t think Judge Moore would really hold a grudge against a colleague who dissented frequently. Judge Moore is a former law professor. She loves to argue. She’s known for being kind of tough and headstrong on the bench. So I really think this is just -- the disability proceeding is a good faith dispute about what’s best for the court that is just played out publicly in an unfortunate way.

 

And I also don’t think anything is helped by how the dispute is -- the disability proceeding dispute is sometimes framed as, like, a personal dispute between Judge Kimberly Moore and Judge Pauline Newman. I think there’s sometimes like a tinge of sexism in that framing, in that it conjures up this notion of, like, “Oh, a judicial cat fight between these two female judges,” and it’s ready made for reality TV.” That’s not what’s happening here, right? It’s not a personal thing. It’s business, as they would say. Judge Moore, she’s acting in her official capacity as Chief Judge of the Federal Circuit, and she’s proceeding in accordance with the framework that’s set by statute and with the rules governing judicial disability proceedings.

 

Judge Newman, for her part, is contesting both the process and the merits of those proceedings, as she has every right to do. And so, I think all of that underscores the importance of adhering to the procedures set by law through dealing with alleged judicial disabilities. And I think Arthur is probably going to be the next speaker, and he’s going to talk a little bit about those procedures in a little bit more detail. But thanks again for having me. This has been a really interesting conversation to take part of.

 

John J. Park, Jr.:  Thank you, Professor Gugliuzza. Our next speaker will be Arthur Hellman, who’s a Professor of Law at the University of Pittsburgh. He’s a nationally recognized scholar of the federal courts.  He has worked with the Judiciary Committee in the House and Senate in drafting federal courts legislation. He has testified at numerous hearings of both Judiciary Committees. His testimony is focused on a wide variety of legislative issues related to the federal courts, including the jurisdiction of the Supreme Court, proposals to divide the Ninth Circuit Courts of Appeal -- Court of Appeals, federal judicial discipline, and other matters.

 

He was appointed as the inaugural holder of the Sally Ann Semenko Endowed Chair at the University. He received the Chancellor’s Distinguished Research Award as a faculty member who has had an outstanding and continuing record of research and scholarly activity. He received his JD from Yale University Law School and his BA from Harvard University. Professor Hellman.

 

Prof. Arthur Hellman:  Okay. Thanks, Jack, for that introduction, and I’ll just get started. Well, as Paul has explained, one facet of this controversy has its roots in the 1982 act that created the Court of Appeals for the Federal Circuit. Another facet can be traced to a law that Congress enacted two years earlier, the Judicial Conduct and Disability Act of 1980. I’ll provide a little bit of background on the 1980 act and explain, as Paul was suggesting, how the proceedings fit or do not fit within the terms of the act.

 

For most of the nation’s history, the only formal mechanism for dealing with misconduct by federal judges was the cumbersome process of impeachment. That era ended with the passage of the 1980 act. The act was the product of a long process and much compromise. I’ll mention just one aspect of that process. The focus was almost entirely on misconduct. Very little attention was paid to disability. But the final version of the bill covered both, and it created a single system for handling complaints of misconduct or disability.

 

What is that system? It’s a system of judicial self-regulation that is decentralized, non-adversary, and forward looking. Primary responsibility for considering complaints against judges is lodged with two sets of actors—the Circuit chief judges and the judicial councils of the Circuits. The Circuit Councils are regional organs of governance established by Congress back in 1939. Ordinarily, a proceeding begins with the filing of a complaint with the Clerk of the Court of Appeals for the Circuit. Anyone can file a complaint—a litigant, a lawyer, or somebody who reads a blog post about the judge. The complaint goes to the chief judge, who reviews it.

 

From that point, the proceeding can follow either of two tracks. Track one is the chief judge track. After reviewing the complaint and perhaps conducting a limited inquiry, the chief judge dismisses the complaint. That’s typically because the complaint is no more than an attempt to relitigate a case that the complainant has lost. All but a tiny fraction of complaints are disposed of on the chief judge track.

 

Track two is a special committee track. This is for complaints that may have substance. Under the act, the chief judge may not make findings of fact about any matter that is reasonably in dispute. So if there are matters reasonably in dispute, the chief judge must appoint a special committee. The special committee carries out an investigation and reports to the Circuit council. It’s the Circuit council that has the power to take action, including discipline, if it finds misconduct or disability.

 

Now, many aspects of the proceeding involving Judge Newman raise questions under the act and also under the rules that the Judicial Conference of the United States promulgated to implement the act. Here, I will discuss three actions that have been questioned by commentators and in Judge Newman’s district court complaint that Jack Park mentioned. First, Judge Moore rejected Judge Newman’s request to transfer the proceeding to another circuit. Second, shortly after Judge Moore initiated the proceeding, the council suspended Judge Newman from hearing new cases “until these proceedings are resolved.” Finally, as again Jack has mentioned, the Special Committee ordered Judge Newman to undergo neurological and neuropsychological testing.

 

Now, Judge Newman initiated a proceeding under the act by identifying a complaint. That was the right thing to do for reasons I’ll be happy to go into if we have the time. But her next step is much more debatable. What she did was to appoint an investigating committee composed of three Federal Circuit judges, including herself. Now, that would have been the right thing to do if the subject judge was a district judge. But here the subject judge was a circuit judge, a colleague of some of the same individuals whose reports had provided the basis for the complaint that Judge Moore identified.

 

And in this situation, the rules provide for another course of conduct. Judge Moore could have asked Chief Justice Roberts to transfer the proceeding to another circuit. That provision was adopted in 2008 in the first set of nationally binding rules. Since then, in every instance where the accusations against a circuit judge have been serious enough to require the appointment of a special committee, the chief judge has requested a transfer, and the Chief Justice has granted it.

 

Now, the Special Committee of the Federal Circuit, in one of the orders that has been made public, has attempted to justify the refusal to seek a transfer. I don’t find their explanations at all persuasive. For example, the Special Committee said that the most relevant precedent was one involving Judge John Adams. But Judge Adams was a district judge. He was a colleague of, at most, one member of the Circuit council who presumably would have recused. Here, you have what is really an internal disagreement within the Federal Circuit, and in my view, that’s the paradigm of the situation where transfer is appropriate and, indeed, desirable.

 

But Judge Moore took another step that I think is even more questionable. After identifying the complaint, and while the Special Committee was starting to carry out its investigation, Judge Moore sent Judge Newman an email stating that Judge Newman will not be assigned any new cases until these proceedings are resolved. And this action raises troubling issues under the act and indeed under the Constitution, as I think Josh Blackman will be discussing.

 

Now, before 1980, there was considerable debate about whether a Circuit council could suspend an Article III judge from hearing cases based on concerns about misconduct or disability. Congress addressed that point in Section 354 of the 1980 act. Section 354 lists the sanctions that may be imposed by a Circuit council after receiving a report from the Special Committee and of course, after the Special Committee has completed its investigation. The most serious sanction that can be imposed on an Article III judge is ordering that on a temporary basis, for a time certain, no further cases be assigned to the subject judge.

 

Based on text and history, I believe that the act provides the exclusive means by which an Article III judge can be suspended from hearing cases based on concerns about misconduct or disability. Now, here’s one powerful piece of evidence to support that. The authoritative legislative history of the act is the House report on the bill that became the 1980 act. And it includes this remarkable paragraph. Here’s what the House Judiciary Committee said. “The potential excesses of a Circuit council must be controlled. As a consequence, what is now Section 358 requires that minimal due process rights be accorded any judicial officer whose actions or state of health are being investigated by a Circuit council.” And the House report continues, “The net effect of this paragraph is that the possibility of one group of federal judges arbitrarily ganging up or hazing another judge is prevented.” And that’s the end of the quote.

 

Now, I’m not suggesting that the Federal Circuit Judicial Council is ganging up on Judge Moore. Not at all. But it would entirely subvert the procedural protections that Congress so carefully built into the act if the Council could suspend a judge without following the procedures specified in the act. Now, I have to recognize there is a later order of the Council that suspends Judge Newman from hearing new cases, ostensibly based on backlog rather than disability or misconduct. And that action, or that order, if it’s stood alone, would not be in conflict with the act. It would be something very different.

 

But the order alludes to concerns about disability.  And given the history that preceded it, I’m not sure that it dispels the concerns that I have raised. And that brings me to another aspect of the proceeding that we’ve heard about. The Special Committee issued several orders requiring Judge Newman to undergo neurological and neuropsychological testing. And the question is, does the Special Committee or the Judicial Council have the authority to impose such a requirement on an Article III judge? Basically, I think the answer is yes, under narrowly tailored -- narrowly defined circumstances and with carefully specified procedures.

 

One reason I say that is because I believe—this is perhaps controversial—that the protections in the Constitution for judicial independence are concerned primarily with potential encroachments on the judiciary by the political branches. They have some application, but it’s minimal application to actions taken by other Article III judges. Now, it’s possible, as the House Judiciary Committee recognized, that one group of judges will gang up on one of their colleagues for personal or other improper reasons.

 

But the proper response to that, as the House Judiciary Committee suggested, is to devise procedures that will protect the rights of the individual judge. Chief Justice Taft and Judge -- Chief Justice Hughes were both fierce champions of judicial independence, but they did not believe that Article III judges should be entirely free from oversight by other judges. I think they were right about that, even though I questioned some of the particular actions taken here. There are some other issues that warrant discussion. But for now, I’ll leave you with that and thank the organizers for the opportunity to participate in this program.

 

John J. Park, Jr.:  Thank you, Professor Hellman. Our next speaker will be Professor Josh Blackman, who’s a Professor of Law at the South Texas College of Law in Houston. He’s a national thought leader on constitutional law and the United States Supreme Court. Since 2012, he has served as a professor at the South Texas College of Law in Houston. He holds his -- he holds the Centennial Chair of Constitutional Law. He’s also an adjunct scholar at the Cato Institute. He has written three books. His latest, An Introduction of Constitutional Law, was a top-five bestseller on Amazon. He blogs at the Volokh Conspiracy and tweets @JoshMBlackman.com. Professor Blackman. You’re muted; unmute.

 

Prof. Josh Blackman:  Thank you so much. If you missed it, they just put the code in the chat, because I know you’re all here for the CLE. Let me start, which what should be in every inquiries, with the Constitution, as we should always. Article III, Section 1 says, “The judges, both of the supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which should not be diminished during the continuance in office.”

 

This dispute between Judge Newman and the Federal Circuit raises really novel separation of powers issues. And there are two tracks here, right? The first is one my good friend Arthur was discussing. Under the various federal statutes and rules governing ethics, can the Court, at least temporarily, deprive Judge Newman of the ability to hear cases, right? And I think I’ll let Arthur handle those questions. But let’s say for a moment that the Federal Circuit’s correct, that the rules do authorize them to deprive Judge Newman of cases, and indeed, that her conduct or cognitive decline, whatever it is, justifies that sanction.

 

The lawyers for Judge Newman have raised an alternative argument that even if all that’s correct, that the statutes, at least as applied to Judge Newman, perhaps on their face, are unconstitutional, all right. And the reason why stems from the text of the Constitution I just read you a moment ago. It’s well known that our system of courts, the federal judges, have what’s often called life tenure. But that’s not exactly what the Constitution says. The Constitution says that judges should hold their offices during good behavior. And this phrase, “good behavior,” does not have a perfect definition. But it’s understood that if a judge commits a crime, engages in bribery, something that effect, they can be removed. They can be impeached.

 

Throughout American history, there have been a handful of impeachment of judges. Not many.  Thankfully, I think that most of our judges are pretty honest and law abiding citizens. But what happens when there’s something short of a crime and Congress has not yet saw fit to initiate impeachment proceedings. What Newman’s lawyers argue as almost an alternative is that Congress cannot remove a judge -- I’m sorry, Congress cannot allow a judge to be removed for cognitive decline or disability. That is not one of the enumerated grounds for removing a judge, and Congress couldn’t give it to the judges anyway.

 

So we’re in this very sort of strange spot where all these statutes that Arthur, I think, eloquently described might actually be unconstitutional. I’ve written about this a little bit. I’ll try to avoid editorializing much. But if this sort of power is abused, it basically becomes self-impeachment, right? If federal judges have the power to basically deprive their colleagues of hearing a case, they’re impeached in all but name. Now, the judges retain their commissions. They retain their salaries, their fixed compensation. But they can’t do the one thing that defines the judicial power, which is deciding cases and controversies.

 

Now, the counsel for Judge Newman is a New Civil Liberties Alliance, the NCLA. Their counsel, Greg Dolin, is a former clerk of Judge Newman. And the NCLA has a very robust view of the separation of powers. So I think they have sort of a broader project going on. It’s not just about Judge Newman, but it’s about ensuring judicial independence. In May, they basically filed a complaint in federal district court in which they sued, not only Judge -- Chief Judge Moore, but also the judges of the Federal Council of the Federal -- sorry -- the Judicial Council of the Federal Circuit. It’s a tongue twister. And they’ve argued that they’re violating the separation of powers.

 

This case has a preliminary injunction motion pending. It hasn’t been resolved yet. The trial judge announced that he wants to try a stab at mediation, which might work, might not. They appointed Judge Griffith, the former D.C. Circuit judge, to handle the mediation. Now, assuming that mediation does not work—and I’m not optimistic it will—that doesn’t obviate the sort of difficult constitutional questions, and I just think of the dynamics here. DOJ is representing the Federal Circuit judges, which I guess makes sense that whenever a federal officer is sued, DOJ steps in.

 

But the upshot of this—and I want to make this point very bluntly—if Judge Moore is effective, that basically creates a vacancy on the Federal Circuit, right, if she’s removed from office through this proceeding. And that creates a vacancy for who to fill? The Biden administration. I’m not alleging any sort of conflict, but there’s an inherent conflict. The very nature of this proceeding is you have the executive branch assisting a judge with removing another judge by virtue of this disability proceeding. I actually thought that Judge Moore should have private counsel. I’m not sure why DOJ is in this case, but I think they have to because they’re defending a federal statute. But it’s sort of this weird dynamic.

 

So let’s say we go ahead and the district court judge denies it PI, and then, in fact, Judge Newman’s removed from office by this proceeding. I think at that point she can actually go to federal court and sue for her salary. Think of Humphrey’s Executor and these other separation of powers cases where officers are properly removed, they can seek back pay. Judge Newman’s quite up in age, but her estate could actually continue that litigation. Poor old Mr. Humphrey during the litigation. So it’s Humphrey’s Executor. So even if this case is not resolved in the short run, we could actually get some decisions in the near future about whether the separation of powers prohibits this form of removal through -- through removal through disability.

 

Okay. That’s the first sort of separation of powers angle that I wanted to address. The second common law issue involves the Due Process Clause. There’s a very basic tenet in American common law that no person should be a judge in their own case. I mean, you can go back to John Marshall, who discussed this many -- two centuries ago. Usually, when you have complaints against judges, they come from litigants. I think Arthur and Jack may have mentioned some of these cases, right, where a litigant complains, “Oh, Judge So-and-so did something wrong,” and then the judge can sort of ferret out whether it’s -- the chief judge ferrets out whether it’s a good complaint or not.

 

But here, the complaints have not come from litigants or the general public. The complaints have come from the judges themselves. Indeed, only the judges can make this complaint because they’re the only ones familiar with the behavior, right? The general public doesn’t see what happens behind closed doors. All we see is a decision that’s published however many days later, right? We don’t know what happens. So we’re in this weird scenario, where the judges of the Federal Circuit have basically made this complaint. The judges of the Federal Circuit have served as fact witnesses. They’re discussing their own communications with Judge Newman. And the judges of the Federal Circuit are the adjudicators.

 

You know the old slogan, “You can’t be judged, you’re an executioner.” They are, right? The judges of the Federal Circuit have taken upon themselves to basically take over every facet of this process. Now, I think Arthur explained why it would be prudent for Judge -- Chief Judge Moore to transfer this case out to another circuit. And I think this has been done many times before. It’s happened with Judge Pryor. It happened with Judge Jones. It’s happened with Judge Kozinski. It’s happened over and over again over the years. It happens.

 

But beyond whether it’s a discretionary choice, the lawyers for Judge Newman have argued it’s actually a violation of due process not to transfer it out. In other words, you can’t have the same person refereeing the complaint, providing factual evidence, and adjudicating it. And to Paul’s point a few moments ago, it might be that these judges don’t want to work with Newman anymore, right? That might be true; it might be false. But she dissents a lot, and apparently that kind of rubs people the wrong way. Maybe I shouldn’t say that too loud, but that’s what I’ve heard from Federal Circuit lawyers. And it’s very difficult to adjudicate someone’s status when you yourself have even if a subconscious cognitive bias, whatever you want to call, whatever label you want to use.

 

So even if the federal court ducks the separation of powers issue, which they very well might, they could actually determine that’s a violation of due process to not transfer this out. So if Judge Moore and her colleagues go through with this, the entire think the end of the road, so to speak, and they deem her disabled, whatever the -- whatever the language they use is, that could effectively be wiped out later. And there’s precedent. So I think Jack mentioned the John Adams case. Not that John Adams. Not the Federalist John Adams. This is a judge in Ohio some years ago where a panel of the court of the Sixth Circuit found that he had to be removed from cases, and this was later wiped away. It was later vacated.

 

So Judge Moore might have the first say on this matter, but she does not have the last say on this matter. And even again, if they sort of duck the, I think, difficult separation of powers issues, they can rule on due process grounds or even, say, just a matter of discretion—she abused it by not transferring this case out—the missing actor here, though, is John Roberts. Where are you, Chief Justice? I mean, even if there’s not been a formal request of the Chief Justice, John Roberts has a telephone. He can call Kimberly Moore. He can say, “Hey, Kim, how’s it going? What’s going on today? I heard that you have this case there. I think my friends in the Second Circuit would be very, very happy to take a look at this,” you know, something right, and get a fresh set of eyes and a fresh set of appearances.

 

And then one last point I’ll make just obliquely, in the brief that Judge Newman filed, she said that law firms did not want to take her case. And she suggested that a lot of the patent lawyers who might otherwise represent her will not because they fear retaliation. And this is a non-trivial concern. I don’t have any inside information here. I don’t know who these lawyers were that turned down the case. But this entire thing will go over so much better if another circuit adjudicated. I think Arthur made the case. Paul made the case. I’m sure Cheryl will make the case, also. This just seems such an easy thing to do. But for whatever reason that we don’t know, Judge Moore is keeping this in house. And I think whatever they do risks being reversed by some higher authority later, which is a waste of everyone’s time. All right. I’ll stop there. I’m eager to hear your questions later. Thank you all so much for your attention.

 

John J. Park, Jr.:  Thank you, Professor Blackman. Our next speaker will be Cheryl Stanton, who is the Chief Legal and Government Affairs Officer at BrightStar Care. Before joining BrightStar Care, she served as Administrator of the Department of Labor’s Wage and Hour Division and was sworn in by then U.S. Secretary of Labor Alex Acosta in 2019. Before that, she had served as the Executive Director of the South Carolina Department of Employment and Workforce.  And under that -- under her leadership, South Carolina’s jobless rate dropped to its lowest point in at least 50 years, and South Carolina’s workforce system helped place South Carolinians into jobs. She served as the White House’s principal legal liaison to the Department of Labor under George W. Bush. She is a graduate of Williams College and earned her law degree from the University of Chicago Law School. Ms. Stanton.

 

Cheryl Stanton:  Thanks, Jack, and thanks y’all for having me on this panel. As people have said, we’re not here to judge anyone’s actions, no pun intended. And I should note you probably have figured out I am not in the patent or IP bar, so you may wonder why I’m here. I am an employment lawyer by background and wanted to give a perspective from the employment law angle. I don’t know the players, like many on this call, and I don’t know the facts or have impressions beyond what I read in the complaint, which are allegations, as we all know. Defendant has not yet replied to these facts in a public setting, and there are probably facts that the plaintiffs lack.

 

So I just wanted to provide a little bit of a case study about how this would have played out or could have played out under two laws that apply to the private sector, were they to apply. Remember, these laws do not apply to the judiciary, so this is more of an academic exercise than a prediction of the way the case will go. But I think it highlights some of the -- some of what we’re seeing play out factually in the public right now. There are two laws I particularly want to focus on. One is the Americans with Disability Act, also called the ADA. And one is called the Age Discrimination in Employment Act, the ADEA, just so we can get as confused as possible.

 

As many of you know, the ADEA prohibits discrimination and harassment for employees over the age of 40. Age discrimination can be proved through direct evidence, like a notation that says “too old” on a resume. But more often, it’s proven through circumstantial evidence. Through a prima facie case that essentially states an individual, the employee, would be over the age of 40, the employee suffered an adverse employment action, the employee is qualified for the position, and the employee was treated differently because of age.

 

The employer can then defend its actions by pointing to a legitimate nondiscriminatory reason for the action taken. But then the plaintiff has an opportunity to point out and rebut the alleged nondiscriminatory reason and, if successful, presumably show that the proper reason was a pretext for the real reason, i.e. discrimination based on age. The ADA prohibits -- similarly prohibits discrimination and harassment for employees who have a disability. But it also protects individuals who have a perceived disability. The same process that I described above applies to disability and perceived disability discrimination claims. Just replace what I said about age with “disability” or “perceived disability.”

 

With that backdrop, it was fascinating for me to read the complaint with an employer lawyer -- employment lawyer’s lens because in many ways the allegations were structured in a way you would expect the private sector employment discrimination to be broad. Midway through the factual allegations, Judge Newman alleges she’s 94, over the age of 40. The complaint also alleges the employer appears to believe that Judge Newman had a heart attack and a resulting surgery. Interestingly, the complaint does not allege these events took place, so it appears this is more of a perceived disability. And again, not knowing much beyond the four corners of the complaint, I thought that was a very interesting structure for the allegations presented. The complaint goes on to extol Judge Newman’s vast qualifications, achievements, and accolades, which I think no one disputes.

 

Next, we see a discussion of the purported adverse action, drafting a disciplinary notice and then using that notice as an attempt to coax Judge Newman into retirement. It alleges when that didn’t work, charges were filed and eventually that Judge Newman was removed from sittings, a fact I will return to. And then later the chronology of events alleged that the law clerk and judicial assistant were reassigned. It goes on to do what many plaintiffs do, and it gets ahead of what they think will be the supposed, legitimate nondiscriminatory justification for the actions. In this case, the idea this was found in a disciplinary document, the idea that Judge Newman was not taking as many sittings as other judges, was too slow in doing her opinions and dissents.

 

But the mean of the allegations of the complaint really address facts to try and rebut that, that even -- that during the period that Judge Newman was supposed to have had surgery, she took ten panels, which was more than at least two other judges. She issued eight opinions and dissents in that time frame. She’s participated en banc decisions. She continues to get -- her recent decisions continue to get praise from practitioners. The chief judge recently praised Judge Newman in a publication and even an empirical study attached as an exhibit, comparing her “output” as described in the complaint to others. They also throw in a number of allegations that make the employer look unfair in the process, which is likely there for the due process claims, but it would also be common in a plaintiff’s complaint to try and make the employer look bad.

 

What is really interesting to me is the crux of this issue, which is the request for the medical examination, which people have talked about on this call, as well as requests for her medical records. Let me start with the caveat that disability law in the private sector is very intricate and technical. I did mention the Family and Medical Leave Act, which interplays very importantly with the ADA on how medical records and examinations can be treated. I can spend hours on webinars for CLE on that.

 

But suffice to say, it’s unusual for the private employer to ask for a medical record and examination of one of its employees for fitness of duty. Usually, you have someone saying, an employee saying, “Here’s my medical note saying that I am fit to return to work or I am fit to work.” If the employer is concerned about that, they would then ask for an examination of the -- by their own examiner. But then if there continued to be a dispute between what the plaintiff’s doctor said and the employer’s doctor, then they would agree upon a third-party neutral. And I think that’s really interesting that Judge Newman’s offering to do that here, according to the complaint but that Judge Moore has refused that.

 

One other thing I will note is, even if in the private sector were we to find that someone has some kind of impairment, even a mental impairment, the next step would be to see if a reasonable accommodation could be made, in other words, some kind of accommodation that’s not outrageous—hiring tons of people, buying lots of expensive software—but that would allow the employee to do the essential job functions. This is very confusing -- this is very nuanced in the law, so I’m talking about at very high level. But it’s further complicated by here because, what is the essential job functions of Judge Newman? Is it simply to sit on cases and have output, or is it to sit on enough cases and have enough output? And who are we going to compare that against because of the fact that there’s no real job description beyond what we see in the Constitution?

 

Finally, I do think an important -- two important notes were made here. First of all, this idea of independence in reviewing the situation. Obviously in the private sector, whether you were still trying to make the decision within the employer, it would not be the manager who would be reviewing the situation and deciding whether the manager was right in her allegations of what happened with the employee, but some third party, usually either within the company or a third-party investigator, would be brought in.

 

And then, finally, I do think that there was an important note here about -- or factual dispute as to the motivation of removing Judge Newman from the sittings going forward, whether it really was retaliation for her filing the lawsuit or whether it was other conduct that people were observing within the judiciary that caused that further development. At the end of the day, though, I’m happy to say I will not have to adjudicate this set of facts in the context of a private or even this dispute, because they’re thorny and they’re difficult. And I would echo what others have said about the unfortunate aspect of this having been made so public and not being able to be resolved behind closed doors. Thank you.

 

John J. Park, Jr.:  Thank you, Ms. Stanton. Appreciate all of your contributions. Ms. Stanton, if this were in the private sector, do you think that this case would get to a jury or what?

 

Cheryl Stanton:  So it’s very unusual to have employment cases get to a jury. Less than -- I think it’s less than even 0.05 percent ever make it to a jury. Much more often, you find employment disputes don’t even get filed in litigation. Very typically, they’re resolved before they even get that far. Once they’re in litigation, however, many are resolved even before summary judgment. And in fact, what often happens very early is what you saw the judge do here, and that is appoint a mediator. Typically, at the beginning of a case, you start the mediation, because that is a very ripe time before too many allegations become public and emotions get too high. I don’t know if we’re at that sweet spot, but it was encouraging to see that having been done.

 

John J. Park, Jr.:  Thank you. Professor Gugliuzza, this is a question from a non-IP practitioner. How does the Federal Circuit do in the Supreme Court? And how much does the Supreme Court like Judge Newman’s jurisprudence?

 

Prof. Paul R. Gugliuzza:  Yeah. So the Federal Circuit has a reputation for being kind of a punching bag by the Supreme Court. I think that’s a reputation gained, not so much through the number of cases in which the Federal Circuit has been reversed by the Supreme Court—which is actually pretty comparable to the regional circuits—but the tone of the Supreme Court’s opinions and even some comments about the Federal Circuit made by Supreme Court justices at oral arguments. Both sort of famously Justice Scalia at oral argument in a case about the non-obviousness requirement of patent law called the Federal Circuit’s jurisprudence “gobbledygook.” A few years later, Chief Justice Roberts made a crack about how courts of appeals can’t just ignore Supreme Court precedent on a particular issue, unless it’s the Federal Circuit. So the Federal Circuit sort of has this bad reputation. I think it might be more driven by anecdote than what the actual numbers would tell you.

 

Judge Newman, off the top of my head, I can’t think of an example of the Supreme Court necessarily strongly agreeing with her or strongly disagreeing with her. I will say Judge Newman, with her general disposition that favors strong patent rights and views patents as essential to promoting innovation, is in tension, I think, with sort of the general tenor of the Supreme Court’s patent jurisprudence the last decade or two, which, by and large, is relatively skeptical of patents, has tended to narrow patent rights, made it a little harder to prove infringement. So there’s some -- so there’s definitely some tension there at a high level.

 

But in terms of any personal attention to one another at that level, I’m not sure I would cite any. Although it does -- particularly Arthur’s and Josh’s comments sort of make me wonder. There’s what we see in the opinions on the books and the dialogue between the court in the public forum. But then there’s questions like, what do we think is really happening, right? Is Chief Justice Roberts picking up the phone? If not, why not? How does what might be happening behind closed doors at the Federal Circuit compare to what’s happened on other courts of appeals in these situations? Maybe it’s something Arthur might know a little bit about. Those are sort of questions in my mind.

 

John J. Park, Jr.:  Thank you. Professor Hellman, the statute gives the judicial council of the circuit the power to certify the disability of a judge or recommend a judge’s retirement. Does that necessarily flow down to the investigating committee to develop the facts, and does it empower the investigating committee to develop the facts that relate to that?

 

Prof. Arthur Hellman:  Well, certainly it’s unlikely that in a contested case that the judicial council would act without an investigation carried out by the special committee. That provision, the involuntary retirement, I’m not sure that there’s any litigated case about the constitutionality of that. I mean, Josh has raised issues about the constitutionality of the provisions of the 1980 act that allow the circuit council to suspend an Article III judge from hearing. Those have been -- cases have been brought, but there’s never been a definitive resolution of that.

 

There was one case some years ago where a judge was involuntarily retired, but that was after he had said, “I’m not going to retire voluntarily, but if you invoke the involuntary provision, I won’t contest it.” So it is an open question whether that is constitutional. And I agree with Josh, that involuntarily retiring a federal judge would be, I think, prima facie in conflict with the good behavior provision. I might disagree with Josh about limited orders suspending a judge for a period of time. It seems to -- I mean, I agree with Josh’s description of what the Constitution requires. If you take away the judge’s function, the judge is no longer a judge.

 

The question is, at what point does a suspension become tantamount to, or functionally indistinguishable, from removing the judge from office? I think small, short term, that’s -- the statute, as I quoted it, for a limited period of time—temporary and for a limited period of time—and Congress in that statute was trying to keep in accord with the Constitution. Because I think everyone who participated in the drafting of the House bill—wasn’t so with the Senate bill that preceded it—everyone who proceeded -- participated in the drafting of the House bill did believe very strongly that the only way to remove a federal judge from office, an Article III federal judge from office, is through impeachment.

 

John J. Park, Jr.:  Thank you, Professor Hellman. We have one question, and I guess the best way to get at this is, do any of you look at blogs like Patently-O -- or Patently-O?

 

Prof. Paul R. Gugliuzza:  I do.

 

Prof. Arthur Hellman:  Occasionally.

 

Prof. Paul R. Gugliuzza:  I’ll cop to it, I do.

 

John J. Park, Jr.:  Okay. Somebody suggests there’s some issues about Judge Moore on that. Are you familiar with that or no?

 

Prof. Paul R. Gugliuzza:  Anything more specific than that?

 

John J. Park, Jr.:  Panel packing or anything like that. I mean, this is an anonymous question, so if you don’t recall, [inaudible 59:43].

 

Prof. Paul R. Gugliuzza:  No, I don’t. And I think, as Arthur probably covered, I mean, there’s not -- to the extent that the Federal Circuit doesn’t transfer this case, there’s -- your only options for both the special committee and for the judicial council as a whole, it’s all Federal Circuit judges, right? So I think, you know, there are good reasons why this dispute might be transferred to another circuit. But to the extent it stays in the Federal Circuit, options are pretty limited in terms of staffing the panels.

 

John J. Park, Jr.:  Right. It’s a pretty small court. Just a question for all of you, what do you think is a reasonable goal for the mediation? From Judge Newman’s perspective, I would be aiming at the very least for a transfer.

 

Prof. Josh Blackman:  I think that’s right. I don’t know on what ground Newman -- I’m sorry, Moore can insist to keep this case, so I suspect we’ll get a transfer. But that doesn’t obviate the fact that she’s been removed from cases for some period of time. And then Arthur’s point, it seems sort of indefinite. It’s not like removing for X period of time. There’s no date certain. So I imagine that she might be reinstated to panels, at least temporarily. The other issue is whether Judge Newman’s doctor will suffice or whether some other doctor picked by the court might be better. I mean, this seems to be a reputable doctor, doesn’t seem to be a quack. What’s the delta of getting the Fed Circuit proof doctor versus Newman’s doctor? That just doesn’t seem very important.

 

Prof. Arthur Hellman:  Well, just to agree with Josh on one point, as I emphasize in my remarks, the actual order that was issued at the very start of the proceeding was not limited in terms, and therefore, it violated the statute, even if it doesn’t violate the Constitution. So I agree with Josh that that’s very, very troublesome. I also agree that if the -- if Judge Moore can be persuaded to agree to the transfer, that would give a fresh start and maybe the district court wouldn’t have to resolve any of the other issues.

 

John J. Park, Jr.:  Yeah. As Professor Blackman’s suggesting, maybe the duration of any removal from cases can be a point of negotiation. Well, thank you all very much for a remarkable presentation today, and we look forward to maybe coming back to this if developments down the road.

 

Jack Capizzi:  Thank you, Jack.

 

Prof. Paul R. Gugliuzza:  Thank you, Jack

 

Jack Capizzi:  Let me just say, on behalf of The Federalist Society, thank you all to the panelists for their time today and to Jack for moderating. Thanks, as well, to Andy Halaby who put this program together. As a reminder to everyone who is registered for CLE, you’ll receive an email with a link to the CLE Certificate of Attendance form within three days of this program. If you by some chance don’t receive the form or have any questions, just email us at [email protected], and we will take care of whatever questions you might have. With that, thank you all so much for being with us. We are adjourned.