Newman Strikes Back in Letter Calling for Moore’s Investigation to be Transferred

“Absent impeachment proceedings, resignation, or imposition of sanctions under the Judicial Disability Act, there are no legal bases to deny the functions of an Article III judicial office to an individual who has been duly appointed to hold such an office ‘during good behaviour.’” – NCLA letter

Pauline NewmanThe New Civil Liberties Alliance (NCLA), the firm representing U.S. Court of Appeals for the Federal Circuit (CAFC) Judge Pauline Newman in CAFC Chief Judge Kimberly Moore’s bid to oust her from the court, sent a letter today to the CAFC Chief Judge calling for the case to be transferred to a new circuit.

The letter charges that Moore has ordered that no new cases be assigned to Newman, that the complaint Moore identified against her “contains basic errors of fact”, and that Newman was not afforded enough time to respond to Moore’s numerous demands, among other accusations.

U.S. Supreme Court Chief Justice John Roberts also received a copy of the letter.

Examples of the factual errors in Moore’s complaint include that Newman’s Summer 2021 sittings were reduced compared to her colleagues, as she actually “served on ten different panels of the Court—more than any other judge but two,” according to the letter.

Moore also alleged that Newman has failed to cooperate. The NCLA letter explained:

“The basis for this allegation appears to be Circuit Judge Newman’s failure to respond within three days to a prior order that directed her to submit to a medical examination by an expert of the ‘special committee’s’ choosing. Leaving aside significant legal questions that such an order raises, three days is not sufficient time to obtain counsel and receive legal advice in responding to this order—protections to which Circuit Judge Newman is entitled under the governing statute and the rules. See 28 U.S.C. ß 358(b)(1); see also Jud. Conduct & Disability Proceedings 15(f).”

Furthermore, the letter said that Moore’s request for Newman to “undergo medical examination, provide medical records, and ‘sit down with the Committee for a video-taped interview’” would now be premature considering the NCLA is asking for the matter to be transferred to a different circuit. While the NCLA said it plans to reply to Moore’s Orders of April 7 and 17, it will do so only once the transfer request has been resolved.

The NCLA is calling for Newman’s judicial access and duties to be fully restored pending the investigation. According to the letter, Moore stated no legal authority or basis for precluding Newman from cases, but instead “sent an email to Circuit Judge Newman (copying all other members of the Court) stating that she ‘will not be assigned any new cases until these proceedings are resolved.’”

“Absent impeachment proceedings, resignation, or imposition of sanctions under the Judicial Disability Act, there are no legal bases to deny the functions of an Article III judicial office to an individual who has been duly appointed to hold such an office ‘during good behaviour,’” said the letter.

Furthermore, Moore has “deprived [Newman] of her secretarial assistance, one of her clerks, and had her ability to use the Court’s communication systems restricted,” all of which exacerbate the allegations against her regarding delay in the disposition of cases, the letter added.

Ultimately, the case must be transferred because there is no way for a “special committee” composed of witnesses who are members of the special committee itself as well as current and former members of the Federal Circuit to render a decision without the appearance of prejudice, the letter explained. As it will be a “highly visible” case, such a proceeding is also likely to “weaken public confidence” in the system.

The letter also cites precedent showing that it is standard practice to transfer a complaint about a Circuit Judge. “The practice of other courts over the years strongly suggests that a request for transfer is not only appropriate, but necessary.”

IPWatchdog first broke the news about Moore’s “identified complaint” against Newman on April 12.

Commenting on the matter following the Federal Circuit’s publication of the documents, IPWatchdog Founder and CEO Gene Quinn said Moore should at the very least recuse herself:

“While the Rules do not prevent Moore being the complainant and participating throughout the proceeding, the Rules do not seem to prevent her from recusing herself when prudence demands. And here, to ensure even a modicum of fairness, Moore really must recuse herself.”

NCLA’s President and General Counsel, Mark Chenoweth, said he hopes Moore reconsiders.

“I hope Chief Judge Moore thinks better of this misguided effort and either withdraws the complaint or—at the very least—transfers it to a judicial council where an impartial review of the facts can occur. Under the circumstances, there is no good reason not to take that wise step.”

 

 

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18 comments so far.

  • [Avatar for Model 101]
    Model 101
    April 24, 2023 01:52 pm

    Everyone

    Moore and Newman are Shaq and Kobe.

    The anti patent judges should be fired.

  • [Avatar for B]
    B
    April 24, 2023 10:00 am

    @ Anon “I also was not aware that TFCFM had been banned from these pages.”

    I was initially thinking the radical who posted under 3 different names including “Centrist Moderate Somthingorother” and who accused me of being a White supremacist for quoting MLK.

  • [Avatar for Anon]
    Anon
    April 24, 2023 07:45 am

    B,

    I see some similarities, but not enough to indicate to me that they are the same person.

    I also was not aware that TFCFM had been banned from these pages.

    Lastly, I await FCP’s answer as to whether or not the presence of a registration number is in fact accompanied by a use of that certificate (to a degree that develops appreciation of strong patent protection).

    TFCFM did not have that appreciation, and actually the presence of the asserted registration actually made TFCFM even more inane.

    I have noticed a deep difference between litigators and practitioners when the litigators lack a developed appreciation. The fact that FCP choose “Practitioner” as part of his/her moniker may or may not be indicative of the type of inanity that plagued TFCFM.

    Let’s await a response — my mind is still open.

  • [Avatar for concerned]
    concerned
    April 24, 2023 06:05 am

    I was told by my attorney to pray we get Judge Newman on our CAFC panel, which unfortunately we did not.

    All Judge Newman needs to do upon defending is place evidence in the official record that supports her position.

    Correction: Evidence is irrelevant. Judges do not have time to search through the briefs like pigs in the trough. On my patent application, I feel the evidence issue was raised in every communication/brief since the first Office Action. I am baffled by the CAFC “pigs in the trough” reference, which was the only rebuttal received on the evidence matter by anyone to dismiss our complaint.

    Same circus with the same clowns. The deck may be stacked against Judge Newman as “due process” seems to be more apparent than real.

  • [Avatar for Pro Say]
    Pro Say
    April 23, 2023 10:49 pm

    Who knew that a 90+ year old, 100 +/- pound judge could be such a bull dog?!

    You go bull dog. You go.

  • [Avatar for B]
    B
    April 23, 2023 08:23 pm

    @ Anon

    Yup. That guy

  • [Avatar for Anon]
    Anon
    April 23, 2023 01:25 pm

    B,

    You mean this guy:

    https://patentlyo.com/patent/2023/04/should-patent-attorney.html#comment-849298

  • [Avatar for B]
    B
    April 23, 2023 12:15 pm

    “ The letter charges that Moore has ordered that no new cases be assigned to Newman, that the complaint Moore identified against her “contains basic errors of fact”, and that Newman was not afforded enough time to respond to Moore’s numerous demands, among other accusations.”

    Apparently, Judge Newman doesn’t believe that she’ll get a fair shake at the Fed.Cir. and will even be denied basic due process as she fights false assertions of fact from the same people reviewing the complaint against her.

    Given what I have personally seen at the CAFC I don’t blame her.

  • [Avatar for B]
    B
    April 23, 2023 11:59 am

    @ Anon “are you (over 80%) primarily a litigator?”

    Think when is the last time you were asking that question

  • [Avatar for Cratman]
    Cratman
    April 22, 2023 11:12 pm

    If Moore made factual and legal errors in a document, which was certain to be heavily scrutinized shouldn’t her competence be evaluated?

  • [Avatar for Anon]
    Anon
    April 22, 2023 09:55 pm

    FCP,

    I appreciate that you have a registration number.

    Do you use it? As in, do you prosecute and obtain patent protection for innovators or are you (over 80%) primarily a litigator?

  • [Avatar for B]
    B
    April 22, 2023 05:04 pm

    @ FCP “Judge Newman continues to embarrass herself. Arguing legal matters in public is usually done by fools, not competent legal professionals.”

    Something tells me you’ve long posted here under another moniker and were banned.

    That said, Newman is one of the few competent judges left, and I’ve never heard a patent professional badmouth her.

  • [Avatar for Federal Circuit Practitioner]
    Federal Circuit Practitioner
    April 22, 2023 05:02 pm

    Judge Newman’s former clerks are fanning the flames by widely circulating a press release rather than letting the process play out in private. No amount of outrage by former clerks matter one iota because a panel of judges (likely aided by medical professionals) will make a decision based on the facts.

    I noted after the first blog post on this topic and repeat again, Judge Newman’s former clerks are not doing her any favors making this sad chapter in Judge Newman’s career so public.

    Atari Man: The documents show that many judges on the Court are concerned and the disability complaint is not the sole work on a single judge. It is unfortunate that certain blog posts have led so many astray — the urge to follow “if it bleeds, it leads” writing style does not produce relevant information.

    Anon: I am a registered patent attorney.

  • [Avatar for Atari Man]
    Atari Man
    April 22, 2023 04:08 pm

    Hitherto I thought that Kimberly Moore was a competent judge. Now I wonder if she’s just another hack who thinks that a black robe entitles her to do whatever she wants.

  • [Avatar for LLDC]
    LLDC
    April 22, 2023 12:36 pm

    This is obviously political. Biden wants another judicial appointee. But the patent putzes are incapable of doing anything against the Democrat regime. Wise up! Flip the Senate.

  • [Avatar for Anon]
    Anon
    April 22, 2023 09:32 am

    I will also repeat a note I made elsewhere:

    The only ones I see taking positions against Judge Newman appear to be anti-patent folk (either Malcolm Mooney or litigators).

    I have not seen a single registered patent attorney have ANY bad thing to say about Judge Newman.

    Further, the whining against – either ‘too few’ or ‘too many’ (think Texas), has one thing in common: those whining are whining against those with strong innovation protection views.

  • [Avatar for Anon]
    Anon
    April 22, 2023 09:29 am

    FCP,

    Your animosity is noted.

    Did you happen to glib over the number of panels worked on – correcting an error of fact?

  • [Avatar for Federal Circuit Practitioner]
    Federal Circuit Practitioner
    April 21, 2023 10:01 pm

    Judge Newman continues to embarrass herself. Arguing legal matters in public is usually done by fools, not competent legal professionals.

    Having skipped most of her work for the last 18 months, she now pretends she wants to work without actually stating that she wants to work full time.

    It is also odd that she has time to attend conferences when she cannot find time to draft opinions even while having less than 1/2 the workload of an active judge.

    Judge Newman could have easily avoided this entire event by either agreeing to work full time or stepping aside.