The Federal Circuit's Special Committee released two documents relevant to their continuing assessment of Judge Pauline Newman's fitness for the bench today, neither of which can be considered comforting to the patent community or those concerned about the Judge or the Court.

The first is a letter from Judge Newman's counsel in the action brought by the Judge's complaint filed in D.C. District Court last month.  Counsel's letter was sent "in response to the Special Committee's Orders of June 1, 2023" that the Committee's investigation is not directed to the substantive issues initially raised but is now focused on whether the Judge's "refusal to cooperate" with the investigation is itself misconduct.  (Those familiar with the complaint will realize that the refusal was with the manner in which the investigation was to be performed and not a blanket refusal to cooperate.)

The letter is appropriately deferential and respectful while at the same time managing to set forth the expanding scope of the investigation from its initiation.  These include the April 6th Order, expanding the investigation to include Judge Newman's alleged (mis)conduct related to an "employment dispute" in her chambers.  This was followed, on April 13th, by an Order that included Judge Newman's alleged "failure to cooperate" by refusing to accept service of Orders issued under Rule 15(a)91)(b).  Then on April 20th, the letter asserts that the scope of the investigation was expanded again to include "retaliatory statements and conduct toward and about" a staff member in the Judge's chambers, the Judge's refusal to allow one of her clerks to be reassigned to a different judge and "requiring the clerk to 'stay or resign,'" and the Judge's alleged conduct towards the IT department.  Lastly, the letter describes the Order of May 26th that was directed to Judge Newman's alleged refusal to cooperate with "ordered neurological and neuropsychological testing, to produce certain medical records, and to meet with the Committee for a recorded interview."  The letter summarizes the categories of allegations in the various letters to be 1) allegations of mental or physical disability; 2) improper behavior towards staff; and 3) failure/refusal to cooperate.

Turning to the Special Committee's June 1st Order, the letter states that the Committee decided it will not pursue the first category of allegations (due to the impracticalities occasioned by the Judge's refusal to cooperate) but would focus its inquiries on the third category.  The letter requests the Committee for "formal clarification" of its intentions regarding the second category, improper behavior towards Court staff, "out of an abundance of caution and to protect Judge Newman's rights."  The letter also asks the Committee to clarify whether it is continuing its investigation into the Judge's alleged failure to cooperate with the Rule 15(a)(1)(b) orders and if the current status of these allegations is also in abeyance.

The final request in the letter is for any oral argument on the matter be made public, i.e., that the public be allowed to attend the hearing scheduled for 2:00 pm on July 13th.  One basis for the request is the Committee's statement that there are no fact witnesses necessary and the argument will be based on the "paper record" and legal argument.  Insofar as all the factual evidence has been disclosed to the public, counsel contends that there is "no weighty reason" for the hearings to be behind closed doors.  The letter cites Supreme Court precedent to support holding the hearings in public absent reasons not present here.  There is also no danger to Judge Newman's reputation, counsel notes, because "the sum and substance of the allegations have already been released to the public," and "[p]ermitting public participation in the upcoming hearing will serve only to increase the public's confidence in Judge Newman's abilities and the disciplinary process."

Discussion of the Court's Order will be the subject of a following post.