Newman Fights Claims of Mootness in Suit Against Colleagues' Fitness Investigation
U.S. Court of Appeals for the Federal Circuit Judge Pauline Newman argued against her colleagues' argument that Newman's case against their investigation into her fitness to continue serving on the bench was mooted. Filing a sur-reply at the U.S. District Court for the District of Columbia, the 96-year-old Newman said that her colleagues' voluntary cessation of an order indefinitely suspending the judge from hearing cases is "insufficient to moot the challenge," adding that the "complained-of conduct fits into the 'capable of repetition, yet evading review' exception to mootness" (The Hon. Pauline Newman v. The Hon. Kimberly Moore, D.D.C. # 23-01334).
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Newman's case stems from a fitness investigation into Newman conducted by judges Kimberly Moore, Sharon Prost and Richard Taranto, which began in March. During the investigation, the three judges issued an order indefinitely suspending Newman from hearing new cases due to her refusal to cooperate with the judges' investigation.
This order was revoked, however, after the three judges narrowed the proceeding to Newman's hindrance of the investigation and ultimately recommended that she be barred from receiving new cases for a year. This recommendation was enacted by the court's Judicial Council (see 2309200024).
Moore, Prost and Taranto claimed that Newman's challenge to the original indefinite suspension was now moot given the later developments. In her reply, Newman claimed that the indefinite order "meets all the criteria for the application of the 'voluntary cessation' doctrine," whereby judicial review is still proper unless it is clear the conduct will not recur. The judge said it is "far from 'absolutely clear' that the removal of Judge Newman's judicial functions" will not recur.
As evidence for this claim, Newman discussed the speed at which she issues opinions. As part of its basis for starting the investigation, Moore, Prost and Taranto discussed Newman's delays in submitting opinions. The judge said that since her time spent in writing opinions won't likely change, seeing as it hasn't changed since 2018, it isn't inconceivable that the three judges will suspend Newman again.
Newman added that it is likely the three judges vacated the indefinite order "strategically and solely to avoid risking an unfavorable judicial decision."