Is There a Campaign to Silence Dissent at the Federal Circuit?

Abstract

This article examines a Complaint against Federal Circuit Judge Pauline Newman, alleging that a “disability” caused her productivity loss and delays in authoring her opinions, thereby rendering her performance unacceptable compared to other active judges on the court. The article shows that the productivity standard used in the Complaint counts only majority and per curiam opinions but not dissenting opinions, thereby prejudicing Judge Newman, who dissents in the majority of her cases. A detailed statistical analysis of a comprehensive dataset of Federal Circuit Decisions was used to analyze the number of authored opinions attributed to Judge Newman and to other active judges on the court as “controls.” The analysis of the most recent period shows that when including dissenting opinions in the count, the productivity attributed to Judge Newman exceeded that attributed to one judge on the court, and the average pendency for issuing majority opinions attributed to her was shorter than that attributed to each of three of her colleagues on the court. In addition, a temporal trend analysis was conducted comparing the number of authored panel opinions over two consecutive periods, the latter being the period during which Judge Newman allegedly suffered a “disability.” The analysis shows that the relative change in the number of authored opinions attributed to Judge Newman between those two consecutive periods was statistically indistinguishable from the corresponding relative change in the number of authored opinions attributed to all other active judges over these consecutive periods. The inference is that any change in authored opinion productivity attributed to Judge Newman essentially tracked similar changes in the productivity attributed to her colleagues and must therefore be presumed unrelated to, or not caused by, specific attributes unique to Judge Newman’s performance. The article concludes that the available evidence does not support the Complaint’s contentions on Judge Newman’s productivity loss. It is shown that the Complaint’s application of the prejudicial productivity standard creates at least the appearance of a conflict of interest. It raises the question whether the Complaint seeks to remove Judge Newman from office to silence dissent at the Federal Circuit.

Keywords: Federal Circuit, dissent, authored opinions, statistical analysis, Rule 36 decisions, per curiam opinions