Not surprisingly, the Special Committee of the Federal Circuit after an Oral Hearing on July 10th voted unanimously the maintain Judge Newman's suspension (see "Judge Newman Suspended for One Year by Federal Circuit") handed down against Judge Pauline Newman on July 23, 2023 until such time that the Judge complies with the Order that she "undergo specified full neuropsychological testing and a neurological examination with independent experts selected by the Committee and to turn over medical records to the neurologist and . . . that Judge Newman sit for an interview." In response, Judge Newman has submitted evidence from her personal physicians and brought suit in the D.C. District Court (see "Judge Newman and the On-Going Attempts to Remove Her from the Federal Circuit"), which suit was dismissed and is on appeal before the District of Columbia Circuit Court (see "Judge Newman's Suit Comes to an End").

The Court has made public the Special Committee's 97 page Report and Recommendation setting forth its evidentiary and legal rationales for the decision to maintain the suspension. One notable aspect is the numerous citations and references that "[t]he Committee had amassed extensive ("voluminous") evidence [elsewhere in the Report specified as "393 pages of supporting evidence"] raising concerns that Judge Newman may suffer from cognitive impairments material to her job. According to the Special Committee '[o]ver the past year, Judge Newman's conduct has not changed" although whether that is said in reference to the Judge's refusal to comply or further incidents of distressing behavior is not clear (tellingly, the Report states that "Judge Newman continues to refuse to cooperate with the Committee's orders and continues to thwart the Committee's ability to fulfill its responsibilities under the Judicial Conduct and Disability Act (Act)", suggesting the basis for the Special Committee's conclusion is the former). The Report asserts that "Judge Newman has not presented any information to undermine the voluminous record the Committee compiled last year raising serious concerns about Judge Newman's cognitive state," and dismisses the "handful of occasions over the past year in which [Judge Newman] delivered some public remarks or sat for an interview." The Special Committee asserts it has "strong concerns established by the extensive record compiled by the Committee showing troubling signs of cognitive decline" which include "angry and abusive behavior towards staff, with many witnesses describing increasingly erratic behavior in 2023." And the Special Committee rejects Judge Newman's contention that the Judge's continuing litigation against these sanctions provides a basis for the Judicial Council to "refrain from addressing her continuing misconduct with an additional sanction." One justification for the continuing sanction enunciated by the Special Committee is that staying sanctions "would seriously impair the public interest [by] impair[ing] the expeditious functioning of the self-policing mechanism in the Act that Congress intended to allow the judiciary to swiftly address issues of disability" [and] "in light of the extensive record developed in this case, permitting Judge Newman to resume hearing cases would raise a serious risk that litigants may be having their disputes decided by a judge who is not fit for executing the duties of her office."

The Report also addresses (and dismisses) three types of "new" information submitted in support of Judge Newman's response to the Committee's Order to Show Cause why the sanctions should be lifted.

The first is the Supreme Court's reliance upon Judge Newman's position (in dissent of an en banc decision by the Federal Circuit) in Rudisill v. McDonough, 601 U.S. 294 (2024). The Report dismisses this argument, contrasting one example with the "voluminous evidence"** adduced by the Special Committee.

The Report also finds unpersuasive examples of Judge Newman's public activities and participation in four conferences or interviews over the past year, saying these do not "eliminate the concerns about her cognitive state already found sufficient to support the medical examination orders." The Report goes on further to say:

The question under the [Judicial Conduct and Disability Act] process at issue concerns disability for fulfilling the particular duties of her office, which require abilities involving short-term memory, clarity about and concentration in working with numerous concrete facts, and stamina in doing so with multiple cases—abilities that go well beyond the ability to be or seem coherent in the settings Judge Newman now highlights.

Turning to Judge Newman's assertions that "no one, including her regular treating physicians and other medical professionals, save for members of this Committee, has suggested that Judge Newman's behavior or medical data would indicate need for any neuropsychological or psychiatric examinations," the Report responds that "[to] the extent Judge Newman claims that no one except the Committee found that the evidence of record created a reasonable basis for the Committee to order medical examinations and production of medical records, that is incorrect. All eleven of Judge Newman's colleagues at the Federal Circuit unanimously found such a reasonable basis, . . . and all seven members of the JC&D Committee affirmed." The Report also asserts that Judge Newman has provided no evidence regarding her physicians' assessment and judgment, nor that these physicians subjected the Judge to "the full battery of neuropsychological testing that the Committee has been seeking for over a year." "The evaluations of Judge Newman by physicians of her choosing did not carry sufficient probative value to undermine the basis for the Special Committee's concerns" according to the Report.

The Report goes on to say that:

Far from providing evidence to allay the ample concerns supporting the medical examination orders, Judge Newman's response—by what is absent from it—has reinforced the concerns about cognitive impairment. Nothing in the response faces up to her conduct, and why it raises various concerns, including regarding cognitive impairment, or presents meaningful evidence of changed circumstances. Indeed, Judge Newman appears, even now, to be unable to grasp that her behavior toward staff has been inappropriate and has had a serious impact on court staff.

(It is somewhat ironic that the Special Committee seems to refuse to accept evidence from Judge Newman's physicians but places great weight on "sworn testimony from staff members in multiple units within the Court including the Clerk's Office, IT, HR, General Counsel's office, and Judge Newman's own chambers"; and that "[t]his testimony detailed interactions with Judge Newman that indicated 'significant mental deterioration' manifested in highly inappropriate and unprofessional behavior by the judge," which regardless of their probity seems to put greater weight on lay opinion rather than professional opinions bound by medical ethics (and it cannot fairly be said that the sources making up the "voluminous evidence" are entirely neutral -- it is worth considering how solicitous anyone would be who felt personally aggrieved in such a situation.)

The Report further asserts in justification of continuing sanctions the existence of "overwhelming evidence of Judge Newman's troubling interactions with staff" that "continues to provide a reasonable basis for concern over Judge Newman's ability to discharge the duties of her office." While seeking (apparently) to minimize the burdens of the required testing ("Those medical examinations are quite limited in the burden they place on Judge Newman. The required neurological evaluation should last 30–45 minutes and will not involve invasive procedures, such as blood work or imaging studies. The required neuropsychological testing involves a clinical interview, administration of questionnaires related to personality and mental health symptoms, and cognitive testing. No aspect of the process is physically invasive, and the entire examination is likely to take up to six hours") they are also qualitative in nature and thus will depend entirely on medical opinions by (necessarily) strangers.

The Report also dismisses Judge Newman's call that her suspension be lifted and the Special Committee's decision on sanctions be stayed during the course of her appeal, because "if [Judge Newman's] mental status is in question then permitting her to sit on panels while the appellate case progresses is not possible," further stating:

As the Judicial Council concluded, failing to act where there is voluminous evidence raising a reasonable concern that she may suffer from a mental disability "would breach our obligations under the Act, display disregard for the rights of litigants bringing their cases before this Court, ignore the rights of court staff to be free from increasingly dysfunctional behavior in the workplace, and undermine public confidence in the judiciary."

In brief summaries, the Report asserts that "[t]he Judicial Council found Judge Newman to have committed misconduct by non-cooperation with its investigation," that "Judge Newman's refusal to cooperate was a serious matter because it prevented the Committee from being able to fulfill its assigned task under the Act—namely, making an informed assessment (and recommendation for the Judicial Council) about whether Judge Newman suffers from a disability," and that because Judge Newman's conduct has not changed the appropriate sanction the Special Committee recommends for "[t]hwarting the Committee's ability to complete the process established by Congress for determining whether a life-tenured judge suffers from a disability" is "a further one-year sanction during which Judge Newman will not be permitted to hear cases at the panel or en banc level.

This sanction is not for past misconduct. Instead, it addresses Judge Newman's continuing misconduct through her continuing refusal to cooperate with the Committee's orders.

The Report is accompanied by copies of some e-mail correspondence relating to squabbles concerning whether Judge Newman was (or was not) invited to professional and social functions at the Court, as well as the transcript of the Oral Hearing. Judge Newman's counsel, Gregory Dolan, after fielding questions from the bench reached the Constitutional basis that Judge Newman has raised in the Judge's complaint before the District Court (abridged somewhat here for clarity), Dr. Dolan arguing:

"Our separation of powers are not meant to allow fellow judges to self-impeach even for terrible misconduct" and the recourse is to recommend to the Judicial Conference that Judge Newman be impeached, counsel making the point that even should the medical exams verify that Judge Newman is not competent the Judicial Council cannot remove her.

"[T]he interesting part about it is taking the test or not taking the test doesn't change the outcome. Judge Newman is and will remain an active judge of this Court until she retires, dies, or is impeached."

"[T]he Committee has repeatedly declined to state that it will be even bound by the test results, a simple step that it might help us to determine things. But the Committee has never said, not once, that if the doctors give her the green light, [Judge Newman] will be restored to the bench."

"But the point is that no one except members of this Committee -- not people who see Judge Newman socially, not people who have seen Judge Newman professionally, not people who have been on various panels with Judge Newman, not the Supreme Court that affirmed her opinion -- thought that Judge Newman is in need of a mental competency exam. It's only this Committee and the physician who has never seen or evaluated or talked to Judge Newman. So you have medical evidence on one hand and complaints by disgruntled staff on the other hand. Respectfully, I think medical evidence warrants more weight."

"All of that having been said, there are still opportunities to resolve this, as we have suggested on multiple occasions. And if the Committee is truly interested in figuring out is Judge Newman able or unable to perform this function, rather than just keeping it to itself, there is an opportunity to get a neutral decisionmaker involved and actually resolve it. So there are off-ramps here, but Judge Newman will not submit to a 'my way or highway' approach. And I understand it may be frustrating to the Committee, but Judge Newman is an Article III judge nominated, confirmed, and appointed by the President. She gets to hold her office on good behavior, and she intends to do so."

It is clear that neither Judge Newman not the Special Committee is willing to take advantage of these opportunities to resolve this matter amicably. Nothing has changed, except that Judge Newman is one year older. The waiting game continues.

**What is that "voluminous evidence"?

According to the Report the "voluminous evidence" amounts to:

Affidavits prepared after more than 20 interviews with Court staff reflect consistent reports of deeply troubling interactions with Judge Newman that suggest significant mental deterioration including memory loss, confusion, lack of comprehension, paranoia, anger, hostility, and severe agitation. Critically, these reports are not isolated incidents of occasional forgetfulness based on a few interactions with only one or two staffers. To the contrary, they come from interactions with staff members across a broad range of departments from the Clerk's Office to Information Technology (IT), to Human Resources (HR), to the General Counsel Office, to Judge Newman's own chambers staff. And contrary to Judge Newman's assertions, the reports indicate that the behaviors suggesting that Judge Newman may have a disability emerged over two years and increased in frequency and severity. Judge Newman has never specifically disputed any of the staff accounts, many of which are independently substantiated by Judge Newman's own emails attached as exhibits.

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