A special committee from the US Court of Appeals for the Federal Circuit released a transcript from an oral argument with Judge Pauline Newman’s counsel yesterday, August 16.
Gregory Dolin, senior litigation counsel from the New Civil Liberties Alliance, represented Newman at the July 13 hearing, which focused on whether her refusal to cooperate with Federal Circuit orders constituted misconduct.
The committee had ordered Newman to undergo a medical examination by a physician selected by them, produce her medical records, and be interviewed so that it could determine whether she had a disability that prevented her from doing her job.
The committee, which consists of Chief Judge Kimberly Moore, Judge Sharon Prost, and Judge Richard Taranto, found on August 4 that Newman’s refusal to cooperate constituted misconduct.
It recommended preventing her from being assigned cases for one year, or until she ceased misconduct.
Heart attack mystery
One issue that emerged from the hearing was whether Newman had a heart attack or some other cardiac issue.
Dolin denied that Newman had a heart attack.
But he refused to answer further questions about whether she had any cardiac issues.
“I'm trying to – respectfully, your honour – I'm trying to think through my answer, not because I don't necessarily know the answer but because of our standing objection to sharing medical information with this committee,” he said.
“We believe this committee is improperly constituted. We believe this matter should not stay with the Federal Circuit. We believe this committee has not made a prima facie case as to why the evaluation is needed in the first place,” Dolin added.
Cardiac redaction
When the committee released the transcript, it noted that it was overruling one of Newman’s concerns related to redaction of the transcript.
She had objected to using the term “cardiac condition” as a substitute for a more specific phrase about her alleged medical condition.
The committee understood her request to mean that she wanted that generic descriptor blacked out entirely and that she wanted to withdraw her previous request to make the transcript public unless “cardiac condition” was deleted from the transcript.
It declined to meet this request, however.
“[The] use of the generic descriptor here avoids leaving any misleading impression that Judge Newman suffers from no cardiac condition whatsoever that may be relevant to observed incidents suggesting cognitive decline,” it said.
Refusal to cooperate
Another issue that the parties contended with at the July 13 hearing was what it meant to cooperate.
Dolin argued that cooperation was a two-way street and meant working together.
“This committee, on matters big and small, refused to cooperate and work together with Judge Newman – as we have now said a number of times – and refused to transfer, even though every circuit faced with a similar situation has transferred any investigation of a circuit judge to another circuit, and in refusing to do so attempted to support this refusal with misleading data,” he said.
The committee did not appear moved by these arguments, and Taranto questioned why Newman had refused to sit for an interview to discuss any alleged factual errors.
Dolin argued that the committee hadn’t specified exactly what it wanted to interview the judge about.
He added that the Federal Circuit had previously refused to transfer the case on the basis that it was aware of the personalities involved – which the request for an interview with Newman contradicted.
The wrong doctor?
Though Newman had refused to undergo medical examinations with the doctor selected by the committee, she had done so with her own physician, Ted Rothstein, who had found that she didn’t have significant cognitive defects – as was previously discussed in Federal Circuit orders.
Taranto questioned whether the affidavits and materials that supplied the basis for concerns about Newman were given to Rothstein.
It was Dolin’s understanding that they were not. He noted that the doctor had been supplied with the materials he deemed necessary to conduct his examination.
“I'm, you know, despite my medical degree, I am not going to second-guess a full professor of neurology,” said Dolin.
Prost also questioned whether Newman’s team had contacted the physician selected by the committee to ask about his qualifications.
They didn’t because they wouldn’t learn on what basis he was selected, according to to Dolin.
Moore asked Dolin whether Newman had a relationship with Rothstein before the test.
Newman had known the doctor both personally and professionally for quite some time, said Dolin.
Data discrepancies
Parties also butted heads over some of the data that the Federal Circuit had highlighted about how long it took Newman to issue decisions.
Dolin noted that it took Newman an average of 141 days more than the average Federal Circuit judge to produce opinions. But he also argued that a unanimous opinion tended to be issued 143 days earlier than an opinion with a dissent.
“That seems to track pretty well with Judge Newman's delays given the fact that she dissents in more than half of the cases,” he said.
The delays have since gone down, added Dolin.
But Moore argued that Newman’s sittings had also reduced and that she sat on 65 cases at a time when the average judge sat through 128.
Sanctions suggestion
Dolin also discussed what kind of sanctions would be warranted if the panel found that Newman’s behaviour constituted misconduct.
He noted that Newman had already been suspended from sitting on cases for six months and that sanctions any longer than that period wouldn’t be appropriate here.
The bar and the public continue to wait for the Federal Circuit Judicial Council’s response to the committee’s recommendation earlier this month.
