The Journal of Appellate Practice and Process

Volume 15 Issue 2 Article 3

2014

Extended Vacancies, Crushing Caseloads, and Emergency Panels in the Federal Courts Of Appeals

Andrew L. Adler

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Recommended Citation Andrew L. Adler, Extended Vacancies, Crushing Caseloads, and Emergency Panels in the Federal Courts Of Appeals, 15 J. APP. PRAC. & PROCESS 163 (2014). Available at: https://lawrepository.ualr.edu/appellatepracticeprocess/vol15/iss2/3

This document is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in The Journal of Appellate Practice and Process by an authorized administrator of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. 36524-aap_15-2 Sheet No. 12 Side A 05/20/2015 10:47:31 ARTICLES Vol. 15, No. 2 (Fall 2014) (Fall 2014) No. 2 Vol. 15, As would later become As would later become 1 ROCESS P AND PROCESS AND PROCESS THE JOURNAL OF JOURNAL THE NTRODUCTION RACTICE AND P I. I ) 5/14/2015) 12:26 PM ELETE D APPELLATE PRACTICE PRACTICE APPELLATE OT PPELLATE N A O (D DOCX 1. OURNAL OF J ESEND At the end of 2013, the chief judge of the Eleventh Circuit At the end of 2013, the chief judge R HE T DLER clear, the emergency arose from multiple vacancies on the court, vacancies on the court, multiple arose from clear, the emergency its heavy per-judge caseload. which exacerbated the effect of consisting of one Eleventh panels Throughout 2014, emergency declared a state of emergency, exempting the court from the exempting declared a state of emergency, a include §46(b) that each of its panels in 28 U.S.C. requirement of Eleventh Circuit judges. majority author The Boies, Schiller & Flexner LLP,Florida. Fort Lauderdale, *Associate, United of the T. Fay Peter Judges Rosemary Barkett and clerk to a law as previously served States Court of Appeals for the Eleventh Circuit, as a staff attorney to that court, and as a Court for theWilliams of the United States District law clerk to Judge Kathleen M. The author wishes to Southern District thankof Florida. Pascual Oliu for helpful comments to the author. solely herein belong expressed The views on an earlier draft of this article. “that therewas certifying is chief judge 46(b) the U.S.C. § 2013) (indicating that under 28 1. No. 41 (Dec. 30, Order United States Court of Appeals for the 11th Cir., Gen. by before this Court be heard that some cases and controversies an emergency requiring [hereinafter General of this Court”) judges two than consisting of fewer three-judge panels 41 is available of General Order at http://www.ca11.uscourts.gov/sites/ A copy Order 41]. default/files/courtdocs/clk/GeneralOrder41.pdf. EXTENDED VACANCIES, CRUSHING CASELOADS, CRUSHING CASELOADS, EXTENDED VACANCIES, PANELS IN THE FEDERAL AND EMERGENCY APPEALS COURTS OF Andrew L. Adler* A 36524-aap_15-2 Sheet No. 12 Side A 05/20/2015 10:47:31 A 05/20/2015 12 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 12 Side B 05/20/2015 10:47:31 ROCESS P , No. 12-14629, at 8–14 at 8–14 12-14629, , No. RACTICE ANDRACTICE P Although other circuits have Although other Petition]. The Eleventh Circuit’s initial Petition]. The PPELLATE 3 A opinion. Rodriguez United States v. Rodriguez United ) 5/14/2015) 12:26 PM OURNAL OF OURNAL J ELETE Rodriguez HE D OT N O (D DOCX 1. , ___ U.S. 135 S. Ct. ___, 390 (2014). Rather than resolving the petition summarily, the summarily, petition the than resolving Rather 2 United States v. Rodriguez, 753 F.3d 1206, 1207 (11th Cir. 2014) (denying (11th Cir. 2014) 1207 F.3d 1206, 753 United States v. Rodriguez, ESEND In a petition for rehearing filed in one such case, an one such case, filed in for rehearing In a petition and the broader context for discussion Part II provides conditions in the Eleventh the dismal Part III summarizes issue—namely, the central statutory Part IV analyzes 2. Appellant’s Pet. for Reh’g, 2. . R 3 DLER 164T hundred one over resolved judges two visiting and judge Circuit appeals. the emergency of validity the appellant challenged unsuccessful panel. opinion a precedential instead published panel emergency emergency. upholding the certified vacancy- based on the 46(b) emergencies certified section is the first the Eleventh Circuit’s opinion caseload combination, to such an decision addressing a challenge federal appellate caseloads vacancies and heavy Because extended emergency. scrutiny of the that opinion invites new are likely to persist, requirement. majority to section 46(b)’s exception emergency that undertaking. This article begins the heavy, issue. It summarizes important analysis of this courts of caseloads facing the federal vacancy-exacerbated judges as one tool to help appeals, and their use of visiting that Congress limitations those caseloads. It details the manage judges, focusing on section has placed on the use of visiting of the panel be drawn from that a majority 46(b)’s requirement to that exceptions the statutory as well as court, the presiding in which And it briefly recounts prior instances requirement. exception based emergency circuits have invoked the statute’s heavy caseloads. on extended vacancies and and judgeships authorized out of twelve vacancies Circuit—four of all the circuits—that the highest per-judge caseload in General Order an emergency understandably led it to declare panels General Order 41, the emergency 41. It then summarizes challenge to the validity of one operating under it, Rodriguez’s such panel, and the constitute and a heavy caseload may vacancies whether multiple A (11th Cir. Mar. 25, 2014) [hereinafter [hereinafter 2014) 25, (11th Cir. Mar. panel decision appears at United States v. Rodriguez, 557 F. App’x 930 (11th Cir. 2014), 930 (11th Cir. 2014), App’x panel decision appears at United States v. Rodriguez, 557 F. cert. denied emergency clearly an 41 declares No. Order that “General holding rehearing and Congress”). contemplated by 36524-aap_15-2 Sheet No. 12 Side B 05/20/2015 10:47:31 B 05/20/2015 12 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 13 Side A 05/20/2015 10:47:31 . ASH .W EO , 81 G 165 PPEALS 7 A ONTEXT C OURTS OF OF OURTS L.J. 315,L.J. the (“By the 1970s, 321 (2011) C UKE “Strikingly, per-judge filings have “Strikingly, per-judge filings have 5 ROADER B EDERAL , 61 D F The Mechanics of Federal Appeals: Uniformity and Case and Case Appeals: Uniformity of Federal Mechanics The ) 5/14/2015) 12:26 PM HE ELETE D II. T OT Judicial Attention as a Scarce Resource: A Preliminary Defense of Defense Preliminary A Resource: Attention as a Scarce Judicial N O “This surge has been attributed largely to a flurry largely to a flurry has been attributed “This surge note 4, at 324 n.44 (citation omitted). 324 n.44 (citation 4, at note note 5, at 407–08 (internal quotation marks and citation omitted). and quotation marks (internal 407–08 5, at note 6 (D ANELSIN THE , Marin K. Levy, , Marin K. Levy, P , are likely to continue certifying section 46(b) section 46(b) certifying continue , are likely to DOCX Annual filings per circuit judge have mushroomed have mushroomed Annual filings per circuit judge supra supra supra supra 4 1. ESEND . 401, 402–03, 405 n.19, 407–09 (2013). (2013). 407–09 n.19, 405 402–03, . 401, Extended judicial vacancies exacerbate the crisis of Extended judicial vacancies The federal courts of appeals have long faced a “crisis in The federal courts of appeals have Part V concludes the article by defending the courts’ broad the courts’ broad by defending the article Part V concludes R . See, e.g. . See, 4 EV DLER MERGENCY L. R of congressional activity in the 1960s, which led to new federal of congressional activity in the for obtaining them.” rights and mechanisms more than quadrupled even as the number of regional courts of courts of regional number even as the more than quadrupled 75 in 1950 . . . to than doubled—from appeals judges has more 167 in 2010.” commonplace in become and such vacancies have volume, volume.” in 1950, to seventy-three over the last sixty years—from 1978, to 194 in 1984, to 237 in seventy-seven in 1964, to 137 in 370 in 2008, and then 1990, to 300 in 1997, to nearly 330 in 2013. approximately E exception— 46(b)’s of section the meaning within an emergency than complicated more is issue statutory that the and concludes received thus it has analytical treatment by the sparse suggested far. It exception. 46(b)’s emergency of section interpretation of visiting use the concerns about the nonetheless summarizes must ultimately that Congress the balance judges and recasts considerations. It predicts between difficult competing maintain the caseloads, vacancies and heavy extended era of that, in this in with a tested precedent appeals, now armed federal courts of Rodriguez receive that this practice It therefore recommends emergencies. and caseload in the context of the vacancy scrutiny additional of appeals. the federal courts crises facing .A 6. Levy, 6. 7. Levy, 7. 5. Marin K. Levy, Levy, K. Marin of appeals.”). courts of the workload the to describe coined phrase ‘crisis in volume’ was 5. Allocate Time across How Judges Cases in the Federal Courts of Appeals Management in the Circuit Courts Management 36524-aap_15-2 Sheet No. 13 Side A 05/20/2015 10:47:31 A 05/20/2015 13 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 13 Side B 05/20/2015 10:47:31 , , 11 .5, .5, .& In In AME 9 YL D and RAC .S 12 ROCESS .P P EV (including OTRE PP .L.R 125 (Nov./Dec. 125 (Nov./Dec. , 88 N , 88 RIZ www.brookings.edu www.brookings.edu , 1 J. A :// , 56 A , 56 RACTICE ANDRACTICE UDICATURE P Archive of Judicial Vacancies , 97 J , 97 PPELLATE A have lasted for over eight years. have lasted for Applied Freakonomics: Explaining the “Crisis of Freakonomics: Applied 101, 114 (2006) (opining that, in response to the so- (opining that, 114 (2006) 101, 10 , http://www.uscourts.gov/JudgesAndJudgeships/Judicial ) 5/14/2015) 12:26 PM OURNAL OF OURNAL Eight Years and Counting: The Longest Current Judicial and Counting: The Longest Current Eight Years J ROCESS ELETE HE Judicial Nominations and Confirmations: Fact Judicial Nominations and Confirmations: and Fiction D .&P Senate Gridlock and Federal Judicial Selection Judicial and Federal Senate Gridlock Filling the District of Arizona Vacancies Filling the District of Arizona OT N RAC O 13 For example, in the first five years of the Obama Obama of the five years first in the example, For (D .P 8 , E. Baker, Thomas PP DOCX 1. Andrew L. Adler, L. Andrew Carl Tobias, Carl Tobias, Carl Tobias, An Argument on the Record for More Federal Judgeships the Record for More Argument on An 37, 38 (1999) (opining that, as a consequence of the caseload crisis, “the overall , 8 J., 8 A Administrative Office of the United States Courts, . 2233, 2234–38 (2013) (summarizing the history of extended circuit vacancies). of extended the history (summarizing (2013) 2234–38 . 2233, ESEND . See, e.g. . See . . See . See R 8 EV 13 10 11 12 DLER ROCESS FixGov: Making Government Work (Dec. 30, 2013, 10:33 a.m.), http 10:33 a.m.), 2013, 30, (Dec. Work Government FixGov: Making 6 (2014) (pointing out that “[t]he vacancy crisis places additional pressure on sitting The article is available atjudges”). http://www.arizonalawreview.org/2014/syllabus/tobias; on which it appears links to a copy bearing clicking “view PDF” at the bottom of the page page numbers. Volume” administration, the average time between vacancy and and vacancy between time the average administration, the average 310 days, and judges was for circuit nomination was and confirmation 253 days. nomination between time the including vacancies, circuit cases, some extreme the most John G. Roberts’s vacant upon seat that became D.C. Circuit Chief Justice, elevation to in increase the stack. This the higher the longer the vacancy, backlogs, and predictably leads to delays, per-judge caseload of appellate The administration work product. even sub-optimal justice suffers. L. R /blogs/fixgov/posts/2013/12/30-staffing-federal-judiciary-2013-no-breakthrough-year 166T years. recent be re- that must is a stack of appeals there seat, For every vacant have already been confirmed; who distributed to judges A 9. Russell Wheeler, Russell 9. quality of the work of the circuit courts has declined markedly,” the concomitant case- a system consisting of two “different tracks of justice management techniques have created in oral argument deprive[d]for different cases and different litigants,” and the “reductions to their cases”). personal attention some paid judges have that the litigants of the assurance tables 5 and 11, which show the average number of days from vacancy to nomination the average number of tables 5 and 11, which show and of days from nomination through hearing to confirmation inthe average number the copy on file with (accessed2, 2015; Feb. Obama administrations) and Bush, Clinton, G.W. Process). Practice and Appellate Journal of called crisis of volume, “we now take for granted what were once characterized as once characterized were what for granted take now called crisis of volume, “we for appellate our expectations have lowered “[w]e that ‘emergency’ procedures,” all have that “[w]e values,” and appellate our down have defined “[w]e that procedure,” internalized the postmodern norms of the minimalist procedural paradigm”); William M. Richman, Vacancy and the Political Dynamic that Produced It Vacancy List as of Dec. 1, 2013 1, of Dec. List as Vacancy copy on file 2015; with 4, (accessed Feb. Vacancies/ArchiveOfJudicialVacancies.aspx Process). Practice and Appellate Journal of 2013) (discussing the circumstances surrounding two such vacancies). such surrounding two the circumstances 2013) (discussing P 36524-aap_15-2 Sheet No. 13 Side B 05/20/2015 10:47:31 B 05/20/2015 13 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 14 Side A 05/20/2015 10:47:31 92 NJUSTICE ON ACCESSION ACCESSION _ L.J. 2386, 2393– 2386, L.J. P10 : 167 10 “Despite these “Despite ALE : 14 NO :: 2011 Annual Report of 2011 Annual the 0 PPEALS ? (Oxford Univ. Press 2013)). Press 2013)). Univ. (Oxford , 123 Y , 123 A 10 / Diluting Justice on Appeal?: An RISIS ap / C While some “have called some “have called While note 13, at 112–13 (summarizing prior (summarizing 13, at 112–13 note 16 To manage their heavy To manage OURTS OF OF OURTS 18 Are Senior Judges Unconstitutional? C supra supra , http://www.uscourts.gov/annualreport_2011 , http://www.uscourts.gov/annualreport_2011 PPEALS IN A etd.ohiolink.edu Baker, Baker, :// EDERAL see see F Judging Justice on Appeal Judging ) 5/14/2015) 12:26 PM OURTS OF C Visiting Judges Fungible Justice: The Use of Visiting Judges in the United Visiting Judges of Justice: The Use Fungible 17 , ELETE D , atState Ohio Ph.D. dissertation, (2011) (unpublished 11–15 OT TATES N S O note 5, at 404; note 4, at 324. note (D . 453, 455 (2007) (“Without senior judges, some appellate courts would some appellate (“Without senior judges, 455 (2007) . 453, ANELSIN THE many federal courts of appeals regularly use visiting many federal courts of appeals , Marin K. Levy, , Marin K. Levy, P NITED EV 19 DOCX supra supra U supra supra 1. Jeffrey Budziak, Jeffrey Budziak, Administrative Office of the United States Courts, HE L. R Support to Judges Support And the stress persists despite the commendable the commendable despite persists And the stress , :T ESEND 15 To ameliorate their heavy caseload, courts of appeals have have appeals courts of caseload, their heavy To ameliorate It is therefore unsurprising that federal courts of appeals that federal courts It is therefore unsurprising R . See . See, e.g. . See, . See 19 14 18 DLER PPEAL MERGENCY ORNELL /Support_To_Judges.aspx (“The Judiciary uses intercircuit and intracircuit assignments Judiciary of (“The /Support_To_Judges.aspx Article III judges to provide short-term assistance overwhelming to courts with caseloads.”); Richard B. Saphire & Michael E. Solimine, _NUM:osu1312564916 (accessed Feb. 3, 2015; copy on file with Journal of Appellate on file with copy 2015; Feb. 3, (accessed _NUM:osu1312564916 Practice and Process). Director 2402 (2014) (reviewing William M. Richman & William L. Reynolds, I caseloads, A for changes to the courts’ constraints—an increase in the constraints—an increase to the courts’ for changes of cases,” neither the number a decrease in of judges or numbers since they traction in the decades gained political proposal “has were first proposed.” option that Congress has long have also taken advantage of one judges. visiting afforded them: E that techniques case-management controversial employed cases, in fewer oral argument granting for instance, include, increased and delegating opinions, precedential fewer publishing and staff attorneys. to law clerks responsibility operate continue to courts of appeals the regional innovations, part, continued to have, for the most filings under stress because rise.” financial judges, who have “little or no of senior contribution reached the working well after they have incentive” to “continue Americans.” age of most retirement .A 15. Levy, 15. David R. Stras & Ryan W. Scott, 16. C face a disastrous build-up of backlogs, severe problems administering justice in a timely problems face a disastrous build-up of backlogs, severe a total breakdownare fashion, or even civil cases. Senior judges in the trial of indispensable, essential, inestimable, and invaluable.”) (internal quotation marks, brackets, citations omitted). Levy, 17. University) (tracing the history of visiting judges back to the mid-nineteenth and early mid-nineteenth and early the back to visiting judges University) (tracing the history of twentieth centuries), available at https structural proposals to the federal appellate explaining that “more recently there courts, and seems to be no interest in them whatsoever on the part of the judges or the Congress, the officials with the powers-that-be apparently have opted power to implement them. . . . The future.”). least for the indefinite structure, at for retaining the present States Courts of Appeals 36524-aap_15-2 Sheet No. 14 Side A 05/20/2015 10:47:31 A 05/20/2015 14 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 14 Side B 05/20/2015 10:47:31 , 42 , 42 , 41 , 41 note ROCESS , 35 L. , 35 & supra supra P . 1, 3 (2013) 3 (2013) . 1, . 301, 302–03 302–03 . 301, EV Introduction EV Introduction Committee Answers Committee Budziak, .L.R U. L. R RIZ While this practice this practice While RACTICE ANDRACTICE ATE see also P , Administrative Office of the 21 G , 48 A , 48 visiting judges help judges visiting 22 (same); See, e.g. (2013) (compiling statistics for 2013), OLDEN PPELLATE . 351, 362–63 (1995) (“Virtually. 351, 362–63 all of the A Table V-2, U.S. Courts of Appeals—Services of Appeals—Services Courts U.S. V-2, Table EF , 43 G , 43 , note 4, at Corey 384 n.414; James J. Brudney & , Dec. 2010, at 10, 10 (noting that Chair of Judicial 2010, , Dec. .J.L.R ICH supra Introduction note 18, at 21 (table showing use of visiting judgesuse of visiting note 18, at 21 (table showing among ) 5/14/2015) 12:26 PM RANCH OURNAL OF OURNAL J B ELETE HE . 287, 287 n.1 (2011) (noting that 287 n.1 (2011) (noting that the Ninth Circuit “had 185 . 287, supra D . 1, 2 (2011) (“This past year, visiting judges participated in more visiting judges (“This past year, (2011) 2 . 1, HIRD , 28 U. M EV OT The Contribution of “Extra” Judges The EV , T N Judicial Business 2013 Judicial Business O Each year from 1997 to 2013, at least 300—and to 2013, at least 1997 from Each year (D 20 U. L. R , Administrative Office of the United States Courts, , , Budziak, , Budziak, U. L. R DOCX 1. . 565, 575 n.15 (2001). (2001). 575 n.15 . 565, ATE ATE U.S. Courts of Appeals—Total Case Participations Cases in Terminated on the , G G EV Designated Diffidence: District Court Judges on the Courts of Appeals Designated Diffidence: DistrictCourts Court Judges on the The statistics mentioned in this sentence were derived by the author from official author The statistics mentioned derived by the in this sentence were R ESEND . See, e.g. . See, . See, e.g. . See, . R Y ’ 20 22 21 OLDEN OLDEN DLER OC Distlear, G (“Our circuit also receives considerable help from district judges judges visiting from and participated injudges these 30, 2012, year ending June country. In the other parts of the 4.9% of the appeals our circuit resolved on the merits.”); Susan P. Graber, S circuits . . . stated or implied that district judges were being used routinely to deal with routinely to deal used being judges were implied that district circuits . . . stated or unfilled vacancies.”). by numerous appeals or by heavy appellate work caused regional circuits notable exception is theCircuit, which from 1997 to 2010). One D.C. Levy, rarely uses visiting judges. Conference Committee on IntercircuitConference Committee suggested that, Assignments when compared to in- circuit visiting judges, out-of-circuit visiting judges may not know the law of the circuit, may not know the quality of the work of the assigned and may incur greater judge, travel costs); Sara C. Benesh, sometimes more than 400—different visiting judges have visiting judges more than 400—different sometimes 5,400 appeals 3,700 to approximately participated in annually four approximately from representing on the merits, terminated appeals. of all such seven percent to almost It has been pressure created by heavy caseloads. relieve the for one busy that the consequences reported, for example, were designated have been “catastrophic appellate court would of District Court Judges Sitting by DesignationExamination of the Use on the United States Courts of Appeals 168T by sit temporarily who courts, III Article other from judges designation. A potential inefficiencies, is not without Courts’ Calls for Help visiting judges—district judges from the Ninth Circuit and district and circuit judges from and district and circuit judges from the Ninth Circuit visiting judges—district judges from 2010). panels” in sitting on out by us elsewhere—helping G than 1,100 cases that were decided on the merits.”);that were decided cases than 1,100 Marsha S. Berzon, (2006) (summarizing inefficiencies with regard to visiting district judges—namely, they may be unfamiliar with appellate practice and the operation of the federal courts of appeals; they often require assistance; top priority remains their their busy docket back home, leading to delays in turn-around time; and they are often assigned lighter cases while difficult cases). the more assigned panel are on the the circuit judges Table S-2 on Briefs Merits After Oral Hearings or Submission Provided by Visiting Judges in Appeals Terminated Terminated Provided by Visiting Judges in Appeals federal-courts data for the years 1997 through 2013. 2013. federal-courts data for the years 1997 through UnitedCourts, States 18, at 19 (figure graphing the number of visiting judges against the number of total appeals of visiting judges against the number of graphing the number 18, at 19 (figure For statisticsfrom 1975 to 2010). on the use of visiting judges in the Ninth Circuit, for example, see Morgan Christen, 36524-aap_15-2 Sheet No. 14 Side B 05/20/2015 10:47:31 B 05/20/2015 14 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 15 Side A 05/20/2015 10:47:31 27 1982 The The 28 And, third, 26 169 PPEALS Second, the Chief Second, the Chief A 25 OURTS OF OF OURTS C 1982 U.S.C.C.A.N. 11, 36 [hereinafter 36 [hereinafter 11, U.S.C.C.A.N. 1982 370 U.S. 530, 604 (1962) (Douglas, J., dissenting)(1962) (Douglas, 604 530, U.S. 370 , EDERAL F reprinted in ) 5/14/2015) 12:26 PM ELETE D As a result, it was not “infrequent that there that As a result, it was not “infrequent OT N 29 note 22, at 304 (quotation marks and citations omitted). citations omitted). marks and (quotation 22, at 304 note O 23 (D ANELSIN THE supra supra P First, the Chief Justice may, “in the public interest,” “in the public interest,” Justice may, First, the Chief DOCX ]. 1. 24 Glidden v. Co. v. Zdanok Glidden v. § 292(d). 292(d). § § 292(a). § ESEND That unwillingness is most evident in a critical limitation in in a critical limitation That unwillingness is most evident Nonetheless, visiting judges are not a panacea, and and a panacea, judges are not visiting Nonetheless, R . Id. . Id. . Cf. 26 27 24 DLER MERGENCY (“My view is that we subtly undermine the constitutional system when we treat federal the constitutional system when we undermine we subtly (“My view is that as fungible.”). judges 25. 28 U.S.C. § 291(a). 28. of “shall be judges court of appeals federal sitting on a panel in a judges a majority” of the Stat. 25, 25–26 (1982) (providing that “at least § 103(b)(2), 96 97-164, No. Pub. L. sit because recusedthat court, unless or disqualified, or unless the chief such judges cannot emergency”). is an certifies that there court of that judge 29. at 26, 97-275, No. S. Rep. accompanying Senate Report observed that, under then-current that, under Senate Report observed accompanying of any be composed may law, “a three-judge appellate panel of active, senior, designated, or district court combination federal judges.” Senate Report [would] be only one circuit judge on a panel or that the presiding [would] be only one circuit judge another judge [would] be a senior judge or a judge from Benesh, 23. designate out-of-circuit circuit judges “upon request by the chief judges “upon request circuit designate out-of-circuit justice” for that circuit. judge or circuit judges in-circuit district may designate Judge of the circuit so requires.” of that court “whenever the business district judges designate out-of-circuit may the Chief Justice by the chief of necessity “upon presentation of a certification circuit wherein the need arises.” judge or circuit justice of the and standards do not pose While, in practice, these procedures Congress’s unwillingness to substantial obstacles, they reflect of visiting judges. use allow the unfettered Act of 1982. the Federal Courts Improvement E remarked judge has circuit and one to sit,” not available judges without” visiting functioned “could not have court that his district judges. be must standards that procedures and has prescribed Congress be designated to sit judges may before visiting followed procedures courts of appeals. These on the federal temporarily visiting judge, based on the status of the and standards vary the use that Congress has carefully considered reflecting the fact judges as fully federal judges and does not regard of visiting fungible. .A 36524-aap_15-2 Sheet No. 15 Side A 05/20/2015 10:47:31 A 05/20/2015 15 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 15 Side B 05/20/2015 10:47:31 ROCESS P the In short, In short, 35 unless this majority this majority such judges such judges 33 1982 U.S.C.C.A.N. at 19 RACTICE ANDRACTICE P In re Bongiorno, 694 F.2d 917, 917, 694 F.2d In re Bongiorno, unless see reprinted in PPELLATE A 36 Congress believed that, as visiting Congress believed 32 note 29, at 9, note 29, ) 5/14/2015) 12:26 PM OURNAL OF OURNAL Congress therefore drew the line at one the line at one therefore drew Congress J supra 1982 U.S.C.C.A.N at 36; U.S.C.C.A.N at 1982 31 , ELETE 1982 U.S.C.C.A.N. at 19. U.S.C.C.A.N. at 1982 HE D OT N O (D reprinted in reprinted in Congress believed that “such situations [would] lead lead [would] situations that “such believed Congress DOCX and “provide greater stability and predictability in the and predictability in the stability and “provide greater 1. 30 34 at 26, at 26, at 9, at 1982 Senate Report ESEND chief judge of that court certifies that there is chief judge of that court certifies that an emergency of a judge of to, the unavailability not limited including, but the court because of illness. Significantly, however, Congress also codified exceptions Congress also codified Significantly, however, three judges, at least a panels, each majority consisting of shall be judges of that court, of whom cannot sit because recused or disqualified, or . Id. . Id. . Id. . Id. R 34 35 30 31 DLER 918 n.1 (2d Cir. 1982) (“Congress’s purpose in enacting [§ 46(b)] was to prevent the purpose in enacting [§ 46(b)] Cir. 1982) (“Congress’s 918 n.1 (2d instability and unpredictability in the law of a circuit that could result if many panels were (citations omitted). from ‘outside’ the circuit.”) composed principally of judges 36. (emphasis added). 46(b) § U.S.C. 28 (acknowledging that “a substantial from outside(acknowledging that number of judges the circuit sit[ ] by courts of appeals”). regularly on the ] that “district judges sit[ designation” and 32. 33. § 46(b). 28 U.S.C. Thus, Congress included one exception for recusals or Thus, Congress included one For present purposes, disqualifications, and one for emergencies. exception—“an the emergency the key statutory issue is whether of a to, the unavailability including, but not limited emergency situations judge of the court because of illness”—encompasses requirement would “discourage[ ] any unnecessary borrowing of ] any unnecessary borrowing would “discourage[ requirement judges” in any given area of the country.” law being applied Congressional reflects a strong as amended, section 46(b), at least two of appellate panels be composed preference that court. judges of the presiding section 46(b) provides that Specifically, clauses. in two “unless” be resolved by appeals may 170T circuit.” law of the the in unpredictability and instability to doctrinal from of appeals judges court court and district circuit because by the not feel bound or may not know the circuit may outside circuit.” law of that utilized, frequently more judges became A that 46(b) to require revising section judge per panel, visiting of whom shall “three judges, at least a majority panels consist of court.” be judges of that 36524-aap_15-2 Sheet No. 15 Side B 05/20/2015 10:47:31 B 05/20/2015 15 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 16 Side A 05/20/2015 10:47:31 . . T EV Judicial ,67S .C.L.R ISS Notably, in , United States v. United , 171 Beyond Techniques Techniques Beyond 37 , 14 M See, e.g. PPEALS . 1109, 1126 (2011). (2011). 1126 . 1109, A The Tenth Circuit EV 40 A. Leo Levin, .L.R And, as mentioned at the And, as mentioned ARV OURTS OF OF OURTS 41 see also 38 C , 124 H , 124 note 37; EDERAL That court ultimately resolved over resolved That court ultimately F ) 5/14/2015) 12:26 PM 39 supra ELETE D OT N Lightened Scrutiny Lightened O (D ANELSIN THE . 877, 883 echoing and, Order Clark Emergency (quoting (1993) n.36 P DOCX EV 1. Order Declaring an Emergency Under 28 U.S.C. § 46(b) (5th Cir. Sept. 28, Cir. Sept. 28, 46(b) (5th U.S.C. § 28 Under an Emergency Declaring Order L. R ESEND At least a handful of courts of appeals have resolved that that resolved have of appeals a handful of courts At least Other courts have also certified section 46(b) emergencies section 46(b) emergencies also certified Other courts have S R . See ’ 37 DLER MERGENCY OHN of Case Management: The Challenge of the Civil Justice Reform Act of 1990 The of Case Management: by anidentifiable 40. These cases are asterisk footnote. J 1999) (Carolyn Dineen King, C.J.) (“In sum, the three judicial vacancies, the injury to an C.J.) 1999) (Carolyn Dineen King, sustained highthe active judge and level of case filings have created a judicial emergency 28, Oct. (5th Cir. § 46(b) 28 U.S.C. under Emergency in the court.”); Order Declaring an court is authorized in regular active to have 17 judges (“This 1991) (Charles Clark, C.J.) sent has been nomination Only one 13. so serving is judges the number of service. Today, to the Senate for its consent. advice and It is the now pending in The circuit is Senate. experiencing increases in appellate filings greater than those experienced in any other Order]. Clark Emergency [hereinafter of appeals.”) United States court 38. Order, Clark Emergency reportedly certified a section 46(b) emergency based on based 46(b) emergency reportedly certified a section in 1994. vacancies and caseload fifty appeals with emergency panels. fifty appeals with emergency the 1991 order, Chief Judge Charles Clark criticized the Chief Judge Charles Clark the 1991 order, vacancies, to fill the nominations failing to make for executive for help. pleas despite the court’s Second the For example, caseload. and based on vacancies “when five in 1998 a section 46(b) emergency Circuit certified had become on the circuit judicial positions out of thirteen the were left unfilled by a Senate hostile to vacant—and nominees.” President’s E a court’s that burden the exacerbate vacancies extended in which the other judges. poses for heavy caseload an emergency certifying issue affirmatively, under section 46(b) the For example, combination. the vacancy-caseload based on and again once in 1991 at least twice, has done so Fifth Circuit certification order the chief judge’s case, in 1999. In each of vacancies, the number heavy caseload, court’s the described vacancies. status of filling those and the uncertain .A Congress’s concern underlying the majority requirement, noting that panels composed of noting that panels composed majority requirement, underlying the Congress’s concern a “significant impact on the precedential value of the would have multiple visiting judges litigant satisfaction”). on well as decisions rendered as 39. Bert I. Huang, Truscello, 168 F.3d 61, 62 n.*** (2d Cir. 1999) (“Pursuant to 28 U.S.C. § 46(b) and an to 28 U.S.C. § 46(b) and (2d Cir. 1999) (“Pursuant n.*** 61, 62 Truscello, 168 F.3d was heard order of the Chief Judge of this Court certifying a judicial emergency, this case the judges from two this Court and from judge panel consisting of one by an emergency District Court sitting by designation.”). United States Gordon Bermant, Jeffrey A. Hennemuth & A. Fletcher Mangum, 41. Possible Solutions and Problem Vacancies: An Examination of the 36524-aap_15-2 Sheet No. 16 Side A 05/20/2015 10:47:31 A 05/20/2015 16 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 16 Side B 05/20/2015 10:47:31 x , p See s See, See, a . ROCESS P ., 216 F.3d F.3d ., 216 239, 244–52 239, 244–52 ROCESS For the federal Judicial Emergencies , 43 JudicialEmergencies .&P / RACTICE ANDRACTICE P RAC acancies V .P PP Judicial PPELLATE , , 5 J. A A note 19, at 382 & n.134 (citing cases). And cases). And (citing & n.134 19, at 382 note JudicialVacancies / believes that extended vacancies vacancies believes that extended supra 45 Assessing Judgeship Needs in the Federal Courts of Assessing Judgeship Parris v. The Miami Herald Publ’g Co Publ’g Herald Miami The Parris v. Judgeships ) 5/19/2015) 12:02 PM OURNAL OF OURNAL J And Judges & Judgeships ELETE HE D 42 Judges OT N O (D Saphire & Solimine, Arthur D. Hellman, Arthur D. See (defining “judicial emergency” for federal courts of appeals as (defining “judicial emergency” for federal “any vacancy DOCX 2. .uscourts.gov/ While these judicial emergencies have no legal have no these judicial emergencies While see also ESEND Thus, several circuits have, understandably, taken the taken have, understandably, circuits Thus, several 44 . See id. . See www R :// , United States v. Gallardo-Marquez, 253 F.3d 1121, 1122 n.3 (8th Cir. 2001) 1122 1121, F.3d , United States v. Gallardo-Marquez, 253 44 DLER Appeals: Policy Choices and Process Concerns Appeals: Policy Choices and Process (2003) (discussing the adjusted-filing metric in the context of requests for additional (2003) (discussing the adjusted-filing metric in the context of requests judgeships). The Administrative Office of the United States Courts operates under the 45. (characterizing thirteen vacancies, one of which had existed for 3,322 days as of early existed for 3,322 days as of early had (characterizing thirteen vacancies, one of which judicial emergencies) (accessed February 2015, as copy on file Feb. 4, 2015; with Journal and Process). Practice of Appellate courts of appeals, it determines judicial emergencies based on based emergencies judicial it determines courts of appeals, in panel of filings per number and the of vacancies the duration type of of filings adjusted based on the with the weight a circuit, case. that the federal they indicate 46(b), section to relationship institution, judiciary, as an declared an emergency under § 46(b) (noting that (1994) the Tenth Circuit 319, 319 n.2 Order Chief Judge’s workload,” citing persistent vacancies and increasing “because of 1994)). Cir. Mar. 29, 46(b) (10th § U.S.C. 28 under Emergency Declaring an 42. generally not available certification orders are emergency Order 41, General exception of they are difficult to identify. exist, but unfortunately may With the Other examples on courts’ websites or legal databases, in cases issued and opinions decided by irregular Eighth example, the For for their composition. not explain the reason panels often do Circuit certified emergencya section 46(b) in 2000, resolving at least appeals seventeen with emergency panels, but the opinions specifynot did the nature of the emergency. e.g. certified the existence of a judicial § 46(b), the Chief Judge (“Pursuant to 28 U.S.C. the designation of fewer than two members of a panel consisting emergency necessitating of Fourth Circuit resolvedthe The Court at of Appeals.”). least fifteen cases with panels did not reference but the opinions to 1994, consisting of two visiting judges from 1990 section 46(b). 172T in so did recently Circuit the Eleventh article, this of beginning Order 41. General give caseload can a heavy and that judicial vacancies position That position of section 46(b). for purposes emergency rise to an States of the United Office by the Administrative is reinforced it considers a list of vacancies that Courts, which compiles in urgent need of filling. “judicial emergencies” A http in a court of appeals where adjusted filings per panel are in excess of in a court of appeals where adjusted 700; or any vacancy filings are between 500 to 700 per in existence more than 18 months where adjusted panel”); Gulf Power Co. v. FCC, 226 F.3d 1220, 1223 (11th Cir. 2000) (Carnes, J., concerning the the J., concerning Cir. 2000) (Carnes, (11th 1220, 1223 F.3d FCC, 226 Co. v. Gulf Power banc) (citing denial of rehearing en the same is true of at least one EleventhGeneral Order 41. Circuit case decided before 43. United States Courts, Courts, States Cir. 2000)). (11th 1298, 1299 United 43. 36524-aap_15-2 Sheet No. 16 Side B 05/20/2015 10:47:31 B 05/20/2015 16 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 17 Side A 05/20/2015 10:47:31 , been , 694 F.2d at , 694 F.2d ASE have IRCUIT C C 173 Bongiorno PPEALS Indeed, emergency emergency Indeed, A 46 ODRIGUEZ LEVENTH R E OURTS OF OF OURTS C , “mak[ing] a comprehensive survey of the , “mak[ing] AND THE . 41, EDERAL O F inter alia N ) 5/19/2015) 12:02 PM , that senior judges constituted “judges of that court” for senior judges , that ONDITIONS IN THE ONDITIONS IN THE C ELETE D RDER OT O N sua sponte O ISMAL ISMAL A. Conditions in the Eleventh Circuit in A. Conditions (D ANELSIN THE D P , Nguyen v. United States, 539 U.S. 69 (2003) (holding that v. United States, a Nguyen 69 (2003) 539 U.S. Ninth Circuit , DOCX HE 2. ENERAL G While some of those challenges involved section 46(b) of those challenges involved some While ESEND At the time the Eleventh Circuit split off from the Fifth off from split Circuit the Eleventh At the time More surprising is that section 46(b) emergency 46(b) emergency that section is More surprising 47 R III. T . See, e.g. . See, 47 DLER MERGENCY panel consisting of two Article III judges and one Article IV judge lacked authority to Article IV judge one panel consisting of two Article III judges and 457 (2d Cir. 1998) 140 F.3d decide petitioners’ appeals); United States v. Desimone, when a circuit judge 46(b) was not violated § (concluding that the majority requirement of and one circuit judge by was rendered decision and the oral argument, died after on a panel Cir. 1994) 45, 46 (2d 35 F.3d Broadcasting Co., Inc., Murray v. Nat’l one visiting judge); (concluding that panel of by a be validlya “case may two circuit judges under adjudicated originally assigned to hear the appeal recused circumstances where one of the three judges F.2d Cnty., 995 Corp. v. Hillsborough Cone himself immediately before oral argument”); of that “judge was a a senior judge banc) (holding that Cir. 1993) (en (11th 185–86 185, 870 Claiborne, v. requirement); United States majority 46(b)’s of § court” for purposes Ninth of the that chief judge (rejecting argument Cir. 1989) (9th 1466–67 1463, F.2d Circuit should have polled the other circuit judges of the Ninth Circuit before certifying the need for out-of-circuit § 291(a)); circuit judges under 28 U.S.C. 691 I.C.C., v. Erie R. Co. requirement); Bessemer & Lake majority 46(b)’s purposes of § active of one the validity of a panel composed 1982) (upholding (3d Cir. 1117 1104, F.2d had disqualifiedcircuit judges all of the other because two district judges, circuit judge and otherwise ineligible to hear the case). themselves or were challenges to the composition of other irregular panels in the in irregular panels of other to the composition challenges past. plans for United States and prepar[ing] condition of business in the courts of the § 331. U.S.C. 28 necessary.” from circuits or districts where assignment of judges to or 46. by the courts unaddressed and thus went such challenges went Or, at least, any unreported. 918 n.1 (concluding, “supervision and direction of the Judicial Conference of the United States,” 28 U.S.C. § U.S.C. 28 States,” United of the Judicial Conference direction of the “supervision and which is charged with, 604(a), panels have resolved numerous appeals over the years, which years, which the over appeals resolved numerous panels have and there litigants, dissatisfied likely produced of a section none challenged the certification and related issues, vacancy-caseload let alone one based on the 46(b) emergency, confronted and The Eleventh Circuit recently combination. such challenge. addressed the first of twelve judges and 2,556 Circuit in 1981, it “was a court E an “emergency.” rise to can give caseload a heavy and in court. unchallenged went certifications .A 36524-aap_15-2 Sheet No. 17 Side A 05/20/2015 10:47:31 A 05/20/2015 17 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 17 Side B 05/20/2015 10:47:31 The ROCESS Caseload 53 december - P Table B-1 , , pages - Federal Judicial Federal , Despite this this Despite 49 summary - RACTICE ANDRACTICE Statistics P (showing 6,047 new cases cases (showing 6,047 new fcms - And the Eleventh Circuit Caseload Statistics 2013 Table B-1 , 54 PPELLATE , A U.S. Court of Appeals Summary—12-Month U.S. Court Summary—12-Month of Appeals Federal Judicial Caseload Statistics , [hereinafter December 2013 Summary]. An electronic [hereinafter December 2013 Summary]. ) 5/19/2015) 12:02 PM OURNAL OF OURNAL J 51 Statistics Moreover, the Eleventh Circuit issued 325 325 issued Moreover, the Eleventh Circuit ELETE at 254–60 (questioning the Eleventh Circuit’s decision not to Circuit’s decision the Eleventh (questioning 254–60 at HE D 52 (showing 6,446 new cases commenced in the Eleventh Circuit). Circuit). Eleventh in the commenced cases new 6,446 (showing OT note 44, at 254. note note 44, at 253 & n.49, 255 n.54. 255 n.49, & 44, at 253 note N Caseload Statistics 2014 O , (D see id. see id. Seeking to remain as small as possible, as small however, Seeking to remain supra supra supra supra 50 Table B-1 Table , From 2012 to 2014, over thirty years later, filings filings later, thirty years over to 2014, 2012 From DOCX 2. 48 Federal Judicial Caseload Statistics Federal at 255; , Administrative Courts, Office of the United States ESEND The result is that the Eleventh Circuit is one of the busiest is one of the busiest Eleventh Circuit the The result is that . . Id. . Id. . Id. R 49 53 54 51 DLER commenced in the Eleventh Circuit); Administrative Office of the United States Courts, Statistics Caseload Statistics (showing 6,226 new cases commenced in the Eleventh Circuit); Administrative in the Eleventh Office cases commenced of new (showing 6,226 the United States Courts, -2013.pdf. 48. Hellman, 48. the court declined to request a single new judgeship, citing to request a single new judgeship, the court declined of circuit precedent, stability and the coherence concerns about as well as collegiality. country. In 2013, the Eleventh courts in the federal appellate and total appeals total appeals filed the most Circuit had of number were divided by the when those numbers terminated authorized panels. circuit issued next closest judge; the per active written opinions 200. circuit issued over only 234, and only one other per active 913 actions on the merits Eleventh Circuit terminated 745, and only one other judge; the next closest circuit terminated than 700. circuit terminated more 174T filings.” ranking it 6,500, approximately to almost 6,000 ranged from filed. in total appeals the circuits third among A Circuit still has only the Eleventh increase in volume, substantial the request. In 2003, That is by judgeships. twelve authorized States submitted of the United Conference Judicial for additional circuit judgeships; to Congress recommendations the Eleventh used, caseload metric based on the adjusted-filing at least ten new been justified in requesting Circuit would have judgeships. Statistics 2012 Hellman, 50. is available at http://www.uscourts.gov/viewer.aspx?doc=/uscourts/ copy of the Summary Statistics/FederalCourtManagementStatistics/2013/appeals request additional judgeships despite a significant rise in caseload). despite request additional judgeships Management Federal Court Administrative Office of the United States Courts, 52. Statistics Appeals Summary Archive, Pages, 2013 31, December Period Ending 36524-aap_15-2 Sheet No. 17 Side B 05/20/2015 10:47:31 B 05/20/2015 17 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 18 Side A 05/20/2015 10:47:31 55 december - And the 58 pages - 175 summary - PPEALS A Explanation of Selected Terms fcms - In 2012, it ranked fourth Likewise, the court led the the court led Likewise, 60 56 OURTS OF OF OURTS C note 52, at U.S. Court of Appeals Summary—12-Month U.S. Court Summary—12-Month of Appeals U.S. Court of Appeals Summary—12-Month U.S. Court Summary—12-Month of Appeals supra note 56. note 58. note EDERAL [hereinafter December 2012 Summary]. An electronic [hereinafter December 2012 Summary]. [hereinafter December 2011 Summary]. An electronic [hereinafter December 2011 Summary]. supra supra F And, in 2011, it again endured 19.1 total And, in 2011, it again endured 19.1 ) 5/19/2015) 12:02 PM 61 ELETE D OT N O In 2011, the Eleventh Circuit again led in total Circuit again led in total In 2011, the Eleventh (D 57 ANELSIN THE P DOCX Because the Eleventh Circuit has one of the highest 2. December 2013 Summary, December 2013 62 59 See ESEND in filings but static number Given the historical increase Similar numbers existed in 2012 and 2011. In 2012, the 2011. In 2012, in 2012 and numbers existed Similar R . Id. . Id. . Id. 55 59 57 DLER MERGENCY (providing that “[v]acant judgeship months are the total number of months that vacancies judgeship months are the total number of months that vacancies (providing that “[v]acant district”). circuit or judgeship position in a any occurred in 61. Summary, 2012 December 62. Summary, 2011 December copy of the Summary is available at http://www.uscourts.gov/viewer.aspx?doc=/uscourts/ is available at http://www.uscourts.gov/viewer.aspx?doc=/uscourts/ copy of the Summary Statistics/FederalCourtManagementStatistics/2012/appeals Management Courts, Federal Court Administrative Office of the United States 56. Statistics Appeals Summary Archive, Pages, 2012 December 31, Period Ending 60. copy of the Summary is available at http://www.uscourts.gov/viewer.aspx?doc=/uscourts/ is available at http://www.uscourts.gov/viewer.aspx?doc=/uscourts/ copy of the Summary Statistics/FederalCourtManagementStatistics/2011/Appeals _ FCMS _ Summary _ December_2011.pdf. Pages _ Management Federal Court Administrative Office of the United States Courts, 58. Statistics Appeals Summary Archive, Pages, 2011 December 31, Period Ending -2012.pdf. -2012.pdf. with nineteen months. months. way with 291 written opinions per active judge and 214 active judge and opinions per 291 written way with the than double judge (more per active procedural terminations per on the merits terminations it was second in next circuit); and active judge. afford extended the Eleventh Circuit can ill of judgeships, the Eleventh Circuit ranked judicial vacancies. Yet in 2013, the circuits with 29.2 months as the total number second among vacant judgeships. with of months E the next judge; per active terminations procedural 243 issued 100. had more than no other circuit had 139, and closest circuit filed and appeals total first in Circuit was comfortably Eleventh per panel. terminated total appeals per panel. total appeals terminated appeals filed and .A and per active judge, procedural terminations court was first in written opinions the Fourth Circuit in both only slightly trailed on the merits per active and terminations per active judge judge. 36524-aap_15-2 Sheet No. 18 Side A 05/20/2015 10:47:31 A 05/20/2015 18 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 18 Side B 05/20/2015 10:47:31 , 63 ROCESS P U.S. Court of Judge Dubina Notably, even 69 68 RACTICE ANDRACTICE (type “Black” in search box, in search (type “Black” P id. The first vacancy arose The first , Atlanta J.-Constitution, Aug. 19, , Atlanta J.-Constitution, Aug. 64 The final vacancy arose on The final vacancy PPELLATE 67 A Biographical Directory of Federal Judges note 44, at 253 (recounting that adjusted filings 253 (recounting 44, at note (comparing the circuits). the An electronic copy of supra ) 5/19/2015) 12:02 PM OURNAL OF OURNAL J The third vacancy arose on September 30, September arose on The third vacancy ELETE HE 66 D Hellman, OT N See Barkett to Leave Appeals Court O (D DOCX 2. (type “Barkett” in search box, click “Go,” then click “Barkett, Rosemary”) (type “Birch” in search box, click “Go,” then click “Birch, Stanley F. Jr.”) Stanley F. Jr.”) click “Birch, click “Go,” then box, in search (type “Birch” (type “Edmondson” in search box, click “Go,” then click “Edmondson, James click “Edmondson, then click “Go,” in search box, (type “Edmondson” (type “Dubina” in search box, click “Go,” then click “Dubina, Joel Fredrick”) Joel click “Dubina, then click “Go,” in search box, (type “Dubina” The second vacancy arose in July 2012, when Judge J.L. arose in July 2012, when The second vacancy 65 Id. Id. Id. Id. ESEND Four of these vacancies existed as of December 30, 2013, existed as of Decemberthese vacancies Four of 2013, 30, R DLER Profile is available at http://www.uscourts.gov/viewer.aspx?doc=/cgi-bin/cmsa2008.pl. in 2002, the court had only oneAnd, vacancy, yet still had the highest adjusted filings per circuit. panel of any October 26, 2013, when Judge Joel F. Dubina took senior status when Judge Joel F. Dubina took October 26, 2013, the court. years on for over twenty after serving announced her retirement, before Judge Barkett for several to delay taking senior status had selflessly decided 63. and terminated per panel, the most terminations onmost and the the merits per judge, still had the most appeals filed in 2008, yet court had no vacancies For example, the procedural terminations per judge. Administrative Office of the United States Courts, Summary Federal Court Management Statistics Archive, Appeals Pages, Caseload Profile Appeals—Judicial 176T are filled, its judgeships all of even when caseloads per-judge by caused the difficulties exacerbated greatly these vacancies caseload. that heavy its emergency. declared court when the Jr., in August Stanley F. Birch, of Judge retirement with the 2010. serving for over twenty-five took senior status after Edmondson years on the court. retired after serving for Barkett Rosemary 2013, when Judge on the court. nearly twenty years A per panel were 1,120 in the Eleventh Circuit, whereas that figure ranged from 583 to 870 whereas per panel were 1,120 in the Eleventh Circuit, for four circuits requesting additional judgeships). 64. Adalberto J. Jordan was confirmed Judge Black took senior status, to February 2012, when H. Susan Judge when 2011, court from February on the vacancy was another There to fill Judicial Center, the vacancy. Federal http://www.fjc.gov/history/home.nsf/page/judges.html (type “Jordan” in search box, click http://www.fjc.gov/history/home.nsf/page/judges.html on Judge Jordan was nominated Adalberto Jose”) (indicating that “Jordan, then click “Go,” 2012); 17, commissioned on February and 2012, August 2, click “Go,” then click “Black, Susan Harrell”) (indicating that Judge Black took senior Harrell”) (indicating that Judge Black took senior click “Black, Susan click “Go,” then file with Journal of6, 2015; copies on Feb. (both accessed status on February 25, 2011) Process). Appellate Practice and 65. Process). Appellate Practice and of file with Journal on 2015; copy 6, (accessed Feb. 66. Practice copy on file with Journal of Appellate and 2015; Larry”) (accessed Feb. 6, Process). 67. 69. Bill Rankin, Process). Appellate Practice and of file with Journal on 2015; copy 6, (accessed Feb. Bill 69. 2013, at 5B. (accessed Feb. 6, 2015; copy on file with Journal of Appellate Practice and Process). Appellate Practice and of file with Journal on 2015; copy 6, (accessed Feb. 68. 36524-aap_15-2 Sheet No. 18 Side B 05/20/2015 10:47:31 B 05/20/2015 18 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 19 Side A 05/20/2015 10:47:31 , 73 71 The Order 75 , AJC.com (Feb. 4, 177 PPEALS A Archive of Judicial Vacancies and the Eleventh Circuit and the Eleventh 72 OURTS OF OF OURTS C , http://www.uscourts.gov/JudgesAndJudgeships/ , http://www.uscourts.gov/JudgesAndJudgeships/ Chief Judge Carnes, after quoting the Chief Judge Carnes, after quoting EDERAL F 74 ) 5/19/2015) 12:02 PM note 1. note B. General Order 41 ELETE D supra supra OT N O Chief Judge May Wait before Taking Senior Status Taking Senior Judge May Wait before Chief (D ANELSIN THE P explaining that “[l]eaving the Court with three with three the Court that “[l]eaving explaining DOCX 70 2. at 2. at 1. at ESEND In sum: Filings have more than doubled in the Eleventh than doubled in have more Filings In sum: On December 30, 2013, about two months after the fourth R . Id. . Id. . Id. 74 75 71 DLER MERGENCY Judicial Emergencies as of Dec. 1, 2013 as of Dec. 1, Judicial Emergencies file on copy 9, 2015; Feb. (accessed JudicialVacancies/ArchiveOfJudicialVacancies.aspx Appellate Practice and Process). with Journal of 73. General Order 41, 72. Administrative Office of the United States Courts, 2013, 6:31 p.m.), http://www.ajc.com/news/news/local/chief-judge-may-wait-before-taking 2013, 6:31 p.m.), Appellate Journal of on file with copy 2015; -senior-status/nWFtj/ 6, (accessed Feb. Process). Practice and relevant portions of section 46(b), “certif[ied] that there is an that there “certif[ied] portions of section 46(b), relevant before this cases and controversies some requiring emergency panels by three-judge Court to be heard and determined of this Court.” consisting of fewer than two judges until [Chief Judge Carnes] or another in effect was to “remain declare[d] Chief Judge formally judge duly authorized to act as vacancy arose, the Eleventh Circuit issued General Order 41. the Eleventh vacancy arose, “for the Court,” Writing Rankin, Bill 70. led the circuits in per-judge caseload in 2013. If extended in per-judge caseload in 2013. led the circuits an can constitute caseload per-judge heavy vacancies and a then it would be 46(b), section within the meaning of emergency Circuit that the conditions in the Eleventh difficult to dispute in late 2013. rose to that level E and heavy vacancies pending court’s to the due months caseload, colleagues.” for my situation is just an intolerable vacancies judgeships of authorized the number its creation; Circuit since the four of court’s twelve the same; remained has nonetheless of the certified were vacant at the time authorized judgeships three years, and seat had been vacant for over one emergency; a year; the been vacant for well over another seat had Courts considered all States Office of the United Administrative emergencies; four vacancies judicial .A 36524-aap_15-2 Sheet No. 19 Side A 05/20/2015 10:47:31 A 05/20/2015 19 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 19 Side B 05/20/2015 10:47:31 76 AILY ,D ROCESS P Addressing the Id. they are often they are often Addressing a related 78 Id. RACTICE ANDRACTICE (2013). (2013). P one active Eleventh one active Eleventh 77 81 one senior Eleventh Circuit one senior Eleventh PPELLATE 80 A Table S-1, U.S. Court of Appeals—Appeals Terminated Court of Appeals—Appeals Terminated Table S-1, U.S. one active Eleventh Circuit judge and Circuit judge and one active Eleventh ) 5/19/2015) 12:02 PM OURNAL OF OURNAL 79 J ELETE Expect to See More Visiting Judges at 11th Circuit: Vacancies HE D OT N one active Eleventh Circuit judge, one out-of- Eleventh one active O 82 (D The latter concerns would presumably also arise by using more visiting The latter concerns would presumably DOCX Id. 2. , United States v. Charlton, 559 F. App’x 845 (11th Cir. Mar. 14, 2014). 2014). Cir. Mar. 14, (11th 845 App’x F. v. Charlton, 559 States United , Cir. 2014). (11th 1265 F.3d 763 Moore, Am. v. Co. of Cas. Prop. , Travelers 2014). 3, Cir. Mar. (11th 909 App’x 556 F. Postmaster Gen., , Metcalfe v. 2014). 16, Cir. June (11th 882 App’x F. 568 Kaba, v. States United , at 1–2. 1–2. at ESEND Shortly after General Order 41 was issued, emergency issued, emergency Order 41 was after General Shortly . Id. . E.g. . E.g. . E.g. . E.g. R ., Jan. 13, 2014, at 1. Chief Judge Carnes opined in the interview Carnes opined 46(b)’s that section Chief Judge at 1. 2014, 13, ., Jan. 76 79 80 81 82 EP DLER Lead Chief Judge to Temporarily Allow More Than One Visiting Judge Per Panel One Allow More Than to Temporarily Lead Chief Judge 77. Alyson M. Palmer, judge and two in-circuit district judges; judge and two in-circuit district judge, and one out-of-circuit Circuit judge, one in-circuit district district judge; R 178T exists.” no longer emergency § 46(b) U.S.C. a 28 that the of the nature 41 did not specify General Order Although after it shortly gave an interview Chief Judge Carnes emergency, the arose from that the emergency confirming was issued, caseload. heavy vacancies and court’s four cases in non-capital over oral arguments panels began presiding cases account for only While such argument. scheduled for oral cases, ten percent of the court’s approximately district judges; two out-of-circuit A oral argument on the their placement difficult; hence the most had panels February 26, 2015, emergency calendar. As of of the Circuit appeals. The composition resolved 113 Eleventh the following varied, and included panels emergency in- and two Circuit judge Eleventh one active combinations: circuit district judges; on the Merits After Oral Hearings or Submission on the Briefs on or Submission Hearings After Oral on the Merits judges. judges. 78. Administrativeterminated on the merits in the Eleventh Circuit received oral argument. of the appeals percent 11.3 30, 2013, In the twelve-month period ending September States Courts, United Office of the matter in the same interview, Chief Judge Carnes recounted how the court had “resisted the court had “resisted recounted how matter in the same Judge Carnes interview, Chief or prestige the court’s collegiality increasing the size of the court” to avoid “dilut[ing] or it moremak[ing] of the court’s difficult to preserve the stability and cohesiveness precedent.” majority requirement that he could not “ask but explained was “a rule for a good reason,” just so darn busy.” any more. We’re all our active judges [to do] implications of in an interview 41 General Order Birch with the same reporter, Judge legal matters to the defer on do not judges visiting commented that “in his experience having panels they sit,” but that “it’s possible with which [that] Eleventh Circuit judges whole court as a more cases to take up a few the court will cause with two visiting judges attuned to looking at may be “more judges Circuit since the Eleventh sitting en banc,” panel opinions where there’s only one circuit judge on there.” 36524-aap_15-2 Sheet No. 19 Side B 05/20/2015 10:47:31 B 05/20/2015 19 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 20 Side A 05/20/2015 10:47:31 90 94 84 at id. one one (and 83 91 n.162 and n.162 179 See infra PPEALS A OURTS OF OF OURTS C , 566 F. App’x 850, 852 *2 (11th Cir. 2014) Cir. 2014) (11th *2 852 850, App’x F. , 566 . Moreover, of the fifty precedential Moreover, of EDERAL 89 F At least one trial judge has participated At least one trial ) 5/19/2015) 12:02 PM 88 ELETE D Emergency Panels in the Eleventh Circuit after December 30, Circuit after December in the Eleventh Panels Emergency ) majority opinions, but they have done so ) majority OT 92 N and they themselves have written separately. and they themselves O Visiting trial judges (both Visiting trial district judges and 93 85 (D 87 ANELSIN THE P DOCX 2. , United States v. Peluffo, 558 F. App’x 853 (11th Cir. Mar. 5, 2014). 2014). Cir. Mar. 5, (11th 853 App’x F. v. Peluffo, 558 United States , , Cir. 2014). (11th 1090 F.3d Talladega, 748 Warden, FCI Caldwell v. Cir. 2014). (11th 1254 F.3d 758 LLC, LVNV Funding, v. , Crawford , Wetherington v. AmeriPath, Inc , Wetherington , West v. Davis, 767 F.3d 1063, 1065 (11th Cir. Sept. 8, 2014) (Bartle, J.); Sept. 8, Cir. 1065 (11th 767 F.3d 1063, Davis, v. West , , United States v. Vinales, 565 F. App’x 518 (11th Cir. 2014). Cir. 2014). (11th 518 App’x F. Vinales, 565 v. States United , , In re Scantling, 754 F.3d 1323, 1325 n.** (11th Cir. 2014) (characterizing Cir. (11th 1325 n.** 1323, F.3d 754 Scantling, , In re Id. Id. Id. ESEND fifty have been precedential and sixty-three have been non- precedential and sixty-three have fifty have been Of the 113 opinions issued under General Order 41 thus issued under General Order Of the 113 opinions R . E.g. . E.g. . E.g. . E.g. . E.g. . E.g. . E.g. (Sept. 12, 2014; updated Feb. 26, 2015) (unpublished compendium on file with compendium 2015) (unpublished Feb. 26, 2014; updated (Sept. 12, 86 84 85 83 94 93 92 91 DLER MERGENCY non-precedential active Eleventh Circuit judge, one judge of the United States of the United judge, one judge Circuit active Eleventh district judge; and one in-circuit International Trade, Court of precedential. cases. in the remaining have been under General Order 41, twenty-four opinions issued of those by trial judges. authored by visiting judges, twenty precedential authored trial judges visiting Not only have over dissents, and likewise authored precedential Visiting circuit judges have E judge; district one in-circuit and judge, circuit circuit of the United one judge judge, Circuit active Eleventh and one one out-of-circuit Trade, and of International States Court district judge. far, Trade) have played a Court of International judges from the two Panels that included emergency panels. crucial role on these of the fifty have heard forty-two visiting trial judges non- fifty-one of the sixty-three opinions and precedential opinions. precedential .A (Ungaro, J., concurring in part and dissenting in part). dissenting in part and concurring J., (Ungaro, 86. General Order 41 panels, been by It is possible that some other decisions will be issued arguments have be casesas there may at the time of this writing still in which oral yet been issued. 41 panels, but opinions have not held before Order 1073 (Benavides, J., dissenting in part). part). J., dissenting in 1073 (Benavides, Judge Schlesinger as sitting by designation). as sitting by designation). Judge Schlesinger 87. Andrew L. Adler, Adler, L. accompanying text. Andrew 87. 2013 by searching “sitting by designation” author) (containing information on cases compiled Circuit database on WestLaw). Eleventh and the relevant time period in the 88. 89. 90. 36524-aap_15-2 Sheet No. 20 Side A 05/20/2015 10:47:31 A 05/20/2015 20 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 20 Side B 05/20/2015 10:47:31 ROCESS P 100 RACTICE ANDRACTICE P In short, visiting judges, short, visiting In 95 PPELLATE A on Rehearing on Rehearing 97 , is a senior Sixth Circuit judge). judge). Sixth Circuit , is a senior 99 Osorio note 2. ) 5/19/2015) 12:02 PM Rodriguez filed a petition for rehearing, for rehearing, a petition Rodriguez filed OURNAL OF OURNAL , the validity of the General Order 41 and J Rodriguez 96 ELETE supra HE D C. OT N was decided by an emergency panel composed an emergency was decided by composed panel O (D Rodriguez made the following arguments: the following arguments: Rodriguez made Petition, inter alia , 767 F.3d at 1073 (Benavides, J., dissenting in part);F.3d at 1073 (Benavides, , 767 Osorio v. State , 557 F. App’x 930. 930. App’x F. , 557 General Order 41 impermissibly failed to identify impermissibly General Order 41 the nature of the emergency, thereby precluding effective review. modify might exception Section 46(b)’s emergency on a panel judges that there be three the requirement of the that a majority the requirement rather than court.” judges on a panel be “judges of that Section 46(b)’s emergency exception applies only Section 46(b)’s emergency a discrete set affecting to “uncontrollable event[s] judge, or a particular a specific of circumstances,” of example statutory the category of cases, because and temporary, illness refers to an “unexpected, 98 DOCX West x x x 2. , at 12–13. 12–13. at 10–11. at at 10–11 (asserting that “[t]he statute is capable of more than one reading, and it reading, and more than one capable of statute is that “[t]he (asserting at 10–11 Rodriguez ESEND Observing that the issue appeared to be one of first of first the issue appeared to be one Observing that Rodriguez . Id. . Id. . Id. . E.g. . Rodriguez R 99 98 95 96 100 DLER is possible that the emergency provision of [the] statute is meant to apply only to the three- first this is an issue of position that, “[b]ecause the and taking judge requirement,” that “it 14 (asserting is at the Court”), by impression in this Court, it should be addressed within the meaning of § 46(b) least subject to serious question whether an emergency as an additional “first impression issue”). that question characterizing exists,” and 97. challenging, panel’s composition. emergency impression, 180T own. of their opinions dissenting Circuit’s on the impact had a noticeable trial judges, particularly 2014. in precedent in-circuit Circuit judge and two visiting of a senior Eleventh in a short and it rejected Rodriguez’s appeal district judges, unpublished opinion. A Farm Bank, F.S.B., 746 F.3d 1242, 1246 n.* (11th Cir. 2014) (indicating that Judge Cir. 2014) (indicating (11th n.* 1246 1242, F.3d F.S.B., 746 Farm Bank, Gilman,whowrote for the court in 36524-aap_15-2 Sheet No. 20 Side B 05/20/2015 10:47:31 B 05/20/2015 20 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 21 Side A 05/20/2015 10:47:31 104 Rodriguez 101 181 , for example, is , for example, PPEALS A Desimone OURTS OF OF OURTS C panel, consisting of a senior panel, consisting of a senior EDERAL F ) 5/19/2015) 12:02 PM Rodriguez ELETE D OT N O at 11. at (D ANELSIN THE However, the Chief Judge designated himself to the himself However, the Chief Judge designated Id. dramatic event . . . meeting the ordinary the ordinary . . meeting . event dramatic ‘emergency.’” of the term understanding P DOCX 103 2. 102 at 11–13. Giving effect to an indefinite suspension would be particularlybe suspension would effect to an indefinite Giving at 11–13. at 458. 458. at United States v. Rodriguez, 753 F.3d 1206 (11th Cir. 2014) (per curiam). curiam). (per 2014) Cir. (11th 1206 F.3d 753 Rodriguez, United States v. Id. ESEND Moreover, the As an initial matter, it is procedurally interesting that interesting that it is procedurally As an initial matter, The Second Circuit’s decision in The Second Circuit’s decision in R . Id. . 101 102 DLER MERGENCY inappropriate, Rodriguez argued, when the asserted emergency “relates to a perception that that “relates to a perception emergency the asserted when argued, inappropriate, Rodriguez Congress has intentionally or otherwise as not to replace retiring judges,” because acted so this would “intrude to determine on the Congressional authority the membership needs of a particular court.” Eleventh Circuit judge and two visiting judges, could have even Eleventh Circuit judge and two to to invalidate—or even questioned whether it had the authority Order 41, an order entered “for consider invalidating—General had the panel found the Court” by the Chief Judge. Conversely, panel to resolve the rehearing petition (and authored the panel to resolve the rehearing the two quorum judges opined resulting opinion) after one of panel with only for a two-judge that it “would not be appropriate this particular claim.” of this court to resolve one member instructive on this point. There, the court denied a petition for There, the court this point. on instructive validity of a two-judge panelrehearing that challenged the one visiting judge of one Second Circuit judge and composed Circuitwhen the third judge, a Second judge, died after oral argument. E petition, the Rodriguez’s denying than summarily Rather precedential in a four-page the issue panel addressed emergency opinion. Threshold Issue 1. An Unaddressed the panel he his petition for rehearing with Rodriguez filed and the panel accepted the to have been invalid, claimed the its own validity. Although invitation to adjudicate .A another court, never been considered by situation has apparently its own validity panel upholding emergency a decision by an of neutrality. the hallmarks not seem to possess may 103. no requirement 46(d) embodies that “[s]ection (pointing out 458–59 at 140 F.3d are members of that the quorum containwho the court; a majority it requires only of judges panel”). of a legally authorized that it be a majority 104. 36524-aap_15-2 Sheet No. 21 Side A 05/20/2015 10:47:31 A 05/20/2015 21 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 21 Side B 05/20/2015 10:47:31 , Previous Previous ROCESS See, e.g. See, , P and whether 107 presented a somewhat a somewhat presented RACTICE ANDRACTICE P Evans Rules & Procedures Rules & , http://www.ca11.uscourts.gov/rules/ , http://www.ca11.uscourts.gov/rules/ But General Order 41 was But General Order PPELLATE A whether a recess appointment whether a recess appointment 105 106 ) 5/19/2015) 12:02 PM OURNAL OF OURNAL J 11th Cir. R. 35, I.O.P. 6 (“Any active Eleventh Circuit judge judge Circuit Eleventh active Cir. R. 35, I.O.P. 6 (“Any 11th ELETE HE D See OT N O , 995 F.2d at 185–86 (holding that senior judges are among the “judges that senior judges are F.2d at 185–86 (holding , 995 (D DOCX 2. Cone Corp. ESEND These concerns might have been mitigated had the full the had been mitigated have might These concerns R 106. DLER confers full authority to act as a federalconfers full authority to act as judge, 105. for the full court to have reheard the case on Although it would have been unusual its own motion, it might have done so if its members had been made aware of the grounds motion. for Rodriguez’s may request that the court be polled on whether rehearing en banc should be granted rehearing en banc may request that the court be polled on whether Despite various been filed by a party.”). for rehearing en banc has petition whether or not a revisions to the Eleventh Circuit’s the past few years, this version of the Rule 35 rules over Rodriguez’s motionwhen for during the spring and summer of 2014, IOP was in effect decision on rehearing came down. rehearing was filed and the Eleventh Circuit’s 182T would a finding such constituted, invalidly been to have itself would that decision issue of whether the circuitous have raised from have been far quandary would been valid. That itself have the have threatened would a decision such because academic, Orderauthorized by General panels of all emergency legitimacy impact. had a significant thus have 41, and would administrative petition To be fair, his challenge. Rodriguez’s court resolved en banc to the original panel, and was addressed only review were that judicial resources substantial would have required time. at the particularly scarce A and thus the full judge on behalf of the court, issued by the chief its validity. And a decision adjudicate suited to court was best implications, would have had circuit-wide declaring it invalid emergency adjudicated by to appeals already both with regard such panels. In regard to the prospective use of panels and with of to other issues can be analogized the situation this respect, has Circuit the Eleventh that administration circuit-wide considered en banc whether its own senior in the past, including court” for purposes of section circuit judges are “judges of that requirement, 46(b)’s majority United States Court of Appeals for the Eleventh Circuit, Appeals for the Eleventh of United States Court Revisions to 11th Circuit Rules and IOP (12 Months) IOP (12 Revisions to 11th Circuit Rules and previous-revisions (accessed Feb. 10, 2015; copies of relevant pages previous-revisions (accessed Feb. 10, 2015; copies on file with Journal of Process). Appellate Practice and of that court” referred to in §46(b)). Two years earlier, the court, in General Order Number Number General Order in earlier, the court, years Two to in §46(b)). of that court” referred that two active Eleventh Circuit judges sit rules requiring one of its local suspended 11, had required that two Eleventh Circuit judges sit on everyon every panel; instead, the Order of United States Court active judge. to be an had judges of those one only panel, but that Order of General A copy 1991). 30, 11 (Apr. Order No. General Circuit, Eleventh Appeals, 11 is available at http://www.ca11.uscourts.gov/sites/default/files/courtdocs/clk/General Order11.pdf. 107. (en banc) (upholding Judge (11th Cir. 2004) 1220 387 F.3d Evans v. Stephens, to the court). recess appointment William H. Pryor’s 36524-aap_15-2 Sheet No. 21 Side B 05/20/2015 10:47:31 B 05/20/2015 21 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 22 Side A 05/20/2015 10:47:31 . RAC .P at 46–47. at 46–47. PP A Id. , a panel of two AR 183 .B LA Murray at 48 n.1. n.1. 48 at F id. The easiest course Furthermore, the Furthermore, PPEALS OF 112 A 110 :J. at 46, and “[b]ecause this opinion “[b]ecause and at 46, id. ECORD OURTS OF OF OURTS , R C at 1239–40 (Wilson, J., dissenting). dissenting). J., (Wilson, 1239–40 at Indeed, in denying the petition, the petition, Indeed, in denying “However,” the court continued, court continued, “However,” the Id. 109 111 EDERAL The Enduring Significance of Former Fifth Circuit Fifth Circuit Significance of Former The Enduring F ) 5/19/2015) 12:02 PM panel deserves praise for explicitly panel deserves As in those cases, an en banc resolution in en banc resolution an cases, As in those ELETE D Bonner: Bonner: 108 OT N O at 1228 n.14. One dissenting judge, however, believed it was “nearly believed however, One dissenting judge, at 1228 n.14. (D , 35 F.3d 45. Denying a petition for petition for , 35 F.3d 45. Denying a rehearing in , 753 F.3d at 1206. at 1206. F.3d , 753 ANELSIN THE at 48, they acknowledged that the petition “raise[d] an institutional issue P Rodriguez would have resoundingly settled the issue. resoundingly would have id. DOCX See id. 2. at n.1. n.1. at 1 (Summer 2012). 1 (Summer Benefitting from Cf. Murray ESEND The R . Rodriguez . Id. . Id. 110 111 112 DLER MERGENCY ECTION 109. Decisions in Eleventh Circuit Jurisprudence Decisions in Eleventh S anathema for circuit court judges to review a colleague’s legitimacy anathema for circuit court judges to review a colleague’s to sit as a member of questiontheir court,” and that doing so would call into the court’s impartiality and thus public confidence in the Court.” “imperil[ ] “the significance of the issue for the effective operation of the “the significance of the issue for us to nevertheless prompts judicial functions of this court holding.” address the issue in an alternative analogous dilemma in that membersabout whether it was of the court disagreed appropriate for adjudicate the constitutionalitythem to of their own colleague’s recusal request had no impediment and noted that no found majority appointment. The been lodged. of action would have been to issue the customary summary summary issue the customary of action would have been to finding that Rodriguez had denial, particularly given the court’s E as be adopted should Circuit Fifth former of the decisions the precedent. binding Rodriguez 2. The Opinion of the issue raised by the petition importance recognizing the its opinion. and for publishing by failing to Rodriguez had waived the issue court noted that revealed two was of the panel the composition raise it earlier, as argument. weeks before oral .A its underlying by observing that, although the panel began the panel’s unpublished, the validity of decision was the opinion issue of such significance that was an composition publication.” on rehearing “warrant[ed] Second Circuit judges held itself to be a quorum authorized to resolve the underlying the underlying authorized to resolve quorum Circuit judges held itself to be a Second himself shortly judge recused before the oral argument. appeal when the third (en banc). (11th Cir. 1981) 1209 1206, F.2d of Pritchard, 661 City v. Bonner 108. Readers interested in a more detailed consideration of this issue may consult Andrew L. Adler, Although the two-judge quorum found it appropriate to resolve the petition without adding found quorum Although the two-judge a third judge, concerns, in part, an administrative matter,” announced that “the opinion ha[d] been of this Court prior to filing,” judges the active circulated to all of of court procedure that merit[ed] a brief opinion,” a brief opinion,” that merit[ed] of court procedure 36524-aap_15-2 Sheet No. 22 Side A 05/20/2015 10:47:31 A 05/20/2015 22 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 22 Side B 05/20/2015 10:47:31 Re’s ROCESS P , Samuel , Samuel P. 113 The court 114 115 See, e.g. RACTICE ANDRACTICE P PPELLATE A , No. 14-288, 2014 WL 4477706 (Aug. 27, (Aug. 4477706 WL 2014 14-288, , No. . 547, 553–56 (2009). 547, (summarizing such EV .L.R LA ) 5/19/2015) 12:02 PM OURNAL OF OURNAL J Should Lower Courts Facilitate Supreme Court Review? Courts Facilitate Supreme Court Lower Should ELETE HE D , 60 A , 60 OT Although the word “extended” is not contained Although the word “extended” N O 116 Rodriguez v. United States Rodriguez v. (D , 753 F.3d at 1207. at 1207. F.3d , 753 DOCX 2. 135 S. Ct. 390 (2014) (denying certiorari). While the denial (denying certiorari). of certiorari in135 S. Ct. 390 (2014) (citing 28 U.S.C. (citing U.S.C. § 46(b)). 28 Richard M. Re, Richard is unsurprising given the absence of a circuit split, the Supreme Court has of a given the absence is unsurprising Irregular Panels Irregular see ESEND Rather than detail the vacancies or the heavy per-judge per-judge detail the vacancies or the heavy Rather than The panel’s core statutory analysis was contained in three in three contained analysis was core statutory The panel’s . Cf. . Rodriguez . Id. . Id. R 113 114 115 116 DLER Supreme Court cases). in section 46(b), the court opined that “the illness example must must example that “the illness opined the court in section 46(b), illness because a sudden, temporary refer to an extended illness, designated to serve on a of a judge after originally [being] emphasized that “[t]he statute contemplate[d] the possibility of that emphasized of a illness in the event of an extended even such an emergency single judge.” caseload, the court instead began a new paragraph by “hold[ing] caseload, the court instead began 41 declares an emergency No. that Chief Judge’s General Order by Congress in § 46(b).” clearly contemplated 184T the that course, for panel opted the had issue. But the waived have remained Order 41 would General underlying emergency have gone would the statutory issues unexplained, officially Court seek Supreme ability to and Rodriguez’s unexplored, curtailed. been effectively have therefore review would Order 41 and After referencing General short paragraphs. that the certified 46(b), the court first confirmed quoting section vacancies and the court’s arise from did indeed emergency explained that The court, taking judicial notice, heavy caseload. fact” that only eight of and indisputable “[i]t was a well-known both at the time judgeships were occupied its authorized twelve that “the 41 and at the time of oral argument, of General Order extended time, several vacancies for an Circuit has experienced of the Circuit’s authorized even with a full complement and that, has a heavy case load per-judge.” judges, the Circuit A periodically reviewed challenges to the compositionperiodically reviewed of lower courts. challenges to Jordan, 2014); Rodriguez Judicata (Oct. 16, 2014, 3:31PM), http://richardresjudicata.wordpress.com/2014/10/16/ http://richardresjudicata.wordpress.com/2014/10/16/ 3:31PM), 2014, Judicata (Oct. 16, should-lower-courts-facilitate-supreme-court-review/duty (considering whether there is a with Journal of Appellate on file copy 2015; to facilitate Feb. 10, such review) (accessed unsuccessfully sought Rodriguez rehearing, Practice and Process). Following the denial of certiorari, in which he largely reiterated the arguments from his rehearing for petition. Pet. Writ of Certiorari, 36524-aap_15-2 Sheet No. 22 Side B 05/20/2015 10:47:31 B 05/20/2015 22 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 23 Side A 05/20/2015 10:47:31 Id. 118 120 which which that the 117 119 121 185 at 232 n.3. While the at 232 n.3. a fortiori a fortiori Id. PPEALS A Id. OURTS OF OF OURTS C court considered whether they modified the court considered whether The court left open the possibility The court left open the possibility 122 EDERAL F ) 5/14/2015) 12:26 PM Whitehall ELETE D OT N O , the Second Circuit denied a petition for rehearing that challenged the (D , 753 F.3d at 1207. at 1207. F.3d , 753 ANELSIN THE P court hypothesized that, if the “unless” clauses modified the “requirement DOCX 1. court found the issueit stated to be “unclear,” structurethat “[t]he and (citing Whitehall Tenants Corp. v. Whitehall Realty Co., 136 F.3d 230 (2d Cir. F.3d (citing WhitehallWhitehall Realty Co., 136 Tenants Corp. v. Whitehall at 1207 n.3. 1207 at n.4. 1207 at ESEND that the two “unless” clausesthat the two “unless” an provide and modify, the more exception from, immediate of the two preceding clauses we hold that the two “unless” phrases. That is, to the requirement that a provide an exception majority of of that court. the three judges on the panel be judges The court then “readily reject[ed]” Rodriguez’s argument Rodriguez’s argument reject[ed]” “readily The court then R . Id. . Rodriguez . Id. . Id. . Id. Whitehall 117 119 120 121 122 DLER MERGENCY 118. 28 U.S.C. § 46(d). that—but declined to address whether—the exceptions also that—but declined to address judges on a that there be three modified the requirement provides that “[a] majority of the number of judges authorized to judges authorized of of the number that “[a] majority provides a quorum.” . . . shall constitute . . a panel . constitute vacancies here, caused by the of judges shortage extended Circuit, of this per-judge caseload with the heavy together by Congress.” contemplated qualifies as an emergency held Rather, the court footnote in a Second CircuitFor support, the court cited a that the two exceptions “probably modify” decision indicating requirement. the majority E § 46(d),” for in provided is otherwise panel particular “[i]t follows the court reasoned, Therefore, the clauses of the statute modified “unless” that the two judges instead of the requirement that there be three requirement court.” those judges be judges “of that of that a majority .A 1998)). In a majority of the the requirement that or panel on a requirement that there be three judges the case. members of the court hearing panel’s judges be validity of a decision rendered by a quorum of two in-circuit judges when the third in- the third when of two in-circuit judges quorum a validity of a decision rendered by after participatingcircuit judge on the panel recused in oral argument, and one of the other insteadjudges listened to a recording of the argument at of attending in person. 136 F.2d relevant” to the were only “arguably the “unless clauses” in § 46(b) Although 231–33. matters at issue there, the that a panel consist of three judges, the requirement that two of the judges must be that a panel consist of three judges, the requirement that two of the judges must parenthetical aside.” a be court’ would members ‘of that Whitehall juxtaposition of the two ‘unless’ clauses suggest that they are exceptions to thesame requirement. modify” the majority they “probably concluded that requirement,” and The 36524-aap_15-2 Sheet No. 23 Side A 05/20/2015 10:47:31 A 05/20/2015 23 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 23 Side B 05/20/2015 10:47:31 , ROCESS Whitehall , which P , 136 F.3d at did not explicitly 126 Whitehall court RACTICE ANDRACTICE XCEPTION P E COPE Rodriguez S 1982 Senate Report at 1208 (citing Id. PPELLATE court also cited the Fifth also cited the court A MERGENCY note 2, at 10–11 (11th Cir. Mar. 25, 2014). 2014). Cir. Mar. 25, (11th 2, at 10–11 note E NCERTAIN S U )’ supra B Rodriguez noting as to each the number of number each the as to noting HE ) 5/14/2015) 12:26 PM OURNAL OF OURNAL 46( J 125 ELETE Petition, HE IV. T D the OT 124 N O ECTION (D S note 114 and accompanying text, the accompanying note 114 and , 753 F.3d at 1207 n.4. n.4. at 1207 F.3d , 753 , 753 F.3d at 1207 n.4. n.4. at 1207 F.3d , 753 Rodriguez Rodriguez , 128 A. What Do the Statutory Exceptions Mean? Mean? Exceptions A. What Do the Statutory court “readily reject[ed]” that argument, relying on argument, court “readily reject[ed]” that OF DOCX . If so, then visiting judges could presumably never presumably If so, then visiting judges could 1. Observing that there was “very little precedent bearing bearing precedent little was “very there that Observing at 1207–08. at 1207–08. at 1207. 1207. at its opinion Perhaps because had to conditions already referred in the Eleventh 127 123 see supra See, e.g. ESEND That appears to be the better view. As a textual matter, the the matter, As a textual view. That appears to be the better Before addressing the scope of the emergency exception, it the scope of the emergency Before addressing . Rodriguez . Id. . Id. . Id. . Rodriguez R 123 124 125 126 128 DLER Circuit, compare the emergency conditions that prompted the Fifth Circuit’s certifications to the conditions then existing in the to refer again Eleventh Circuit. It did, however, exceptions could grammatically modify both the three-judge could grammatically exceptions or the majority requirement, and the majority requirement only the three- alone, but they could not modify requirement from the The exceptions follow immediately judge requirement. the to read difficult and it is therefore requirement, majority requirement. only the three-judge exceptions as modifying the Supporting that interpretation is vacancies and the heavy caseload that the Fifth Circuit used to Circuit used Fifth that the caseload and the heavy vacancies conditions. emergency certifications of justify its that the threshold argument address to is first necessary the to are exceptions clauses 46(b)’s “unless” section not the that panels consist of three judges, requirement judges “of that of those judges be a majority that requirement court.” panel, because there majority of a validly constituted the form The requirement. majority would be no exceptions to the Rodriguez Whitehall 186T panel. issue,” on this as orders emergency-certification 1991 and 1999 Circuit’s authority, supporting A which itself cited the Fifth Circuit’s 1991 order. 232 n.3). 232 n.3). 127. 36524-aap_15-2 Sheet No. 23 Side B 05/20/2015 10:47:31 B 05/20/2015 23 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 24 Side A 05/20/2015 10:47:31 , at , at 131 129 , 539 , 539 supra supra see Nguyen see 187 1982 U.S.C.C.A.N. 11, 1982 U.S.C.C.A.N. PPEALS A reprinted in reprinted Length of Time from Nomination toLength of Time from Nomination OURTS OF OF OURTS C President Obama’s First-Term U.S. Circuit and and President Obama’s First-Term U.S. Circuit would be assigned to a panel of atbe assigned to a would EDERAL states that, while two judges may judges that, while two states F note 29, at 26–27, at 26–27, note 29, ) 5/14/2015) 12:26 PM In that case, the exceptions could apply to apply exceptions could the In that case, 1982 U.S.C.C.A.N. at 19 (emphasis added); 19 (emphasis U.S.C.C.A.N. at 1982 supra ELETE , 130 D Report all cases OT N O (D ANELSIN THE , Barry J. McMillion, reprinted in P DOCX 1. at 9, at 9, , at Summary (Cong. Res. Serv. Sept. 18, 2012) (“For uncontroversial circuit court uncontroversial (“For 2012) 18, Sept. Res. Serv. (Cong. , at Summary 1982 Senate Report ESEND Given that the emergency exception modifies at least the at least the modifies exception Given that the emergency R . Id. . See, e.g. 130 131 DLER MERGENCY 36–37. statutoryU.S. at 82 (“[T]he of appeals to for courts authority in sit § panels, 28 U.S.C. in the first instance.”); three judges least inclusion of at 46(b), requires the Jordan, composition prevailing approach to panel formation and seems tonote 113, at 549 (“[T]he be as follows. inAll appeals must be assigned the first instance to a panel of three the panel may decide with becomes unavailable, If an assigned judge authorized judges. to do so.”). theauthority statutory that restrict local rules subject to judges, only two 129. E the with connection in exceptions two 46(b)’s section discusses requirement. not the three-judge but requirement majority the Furthermore, a panel was only after requirement the three-judgment to be an arbitrary temporal would seem constituted, which the statute do and purpose of the text Nonetheless, limitation. the modify that the exceptions could possibility not exclude the the majority in addition to requirement three-judgment be need not is unclear and ultimately but that issue requirement, resolved here. statutory issue—whether the central requirement, majority caseload, can trigger a heavy coupled with judicial vacancies, as While, be addressed. exception—must the emergency issue have resolved that explained above, several circuits clear the single is far from their conclusion affirmatively, only consider that, when doubt, one need choice. To foster some in 1982 to include both theCongress revised section 46(b) extended judicial and the exceptions, requirement majority are today, prevalent as they vacancies were nowhere near as .A “in unavailable, a quorum if theconstitute judge becomes third instance, the first judges.” least three District Court Nominations: An Analysis and Comparison with Presidents Since Reagan and Comparison District Court Nominations: An Analysis from of days elapsed average number (“The 2, 2013) Serv. May Res. Summary (Cong. President’s first a nomination to confirmation for circuit court nominees confirmed during days first term to 277 Reagan’s during President term ranged from 45.5 during President from nomination to confirmation. The median number of days G.W. Bush’s. . . for circuit to 28 days (Reagan) during a President’s first term ranged from court nominees confirmed Barry J. McMillion, 225.5 days (Obama).”); Confirmation for “Uncontroversial” U.S. Circuit and District Nominees: Detailed and District Nominees: Circuit U.S. Confirmation for “Uncontroversial” Analysis nomination to confirmation ranged of days from number and median nominees, the mean 36524-aap_15-2 Sheet No. 24 Side A 05/20/2015 10:47:31 A 05/20/2015 24 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 24 Side B 05/20/2015 10:47:31 ROCESS P The panel’s 134 133 court opined that court opined This interpretation This interpretation RACTICE ANDRACTICE P 136 Rodriguez PPELLATE A Thus, as a practical matter, it as a practical matter, Thus, 132 ) 5/14/2015) 12:26 PM OURNAL OF OURNAL J ELETE HE D OT N O (D notes 4–6 and accompanying text. accompanying and 4–6 notes , 753 F.3d at 1207 & 1207 n.3. n.3. 1207 & at 1207 F.3d , 753 The illness exemplified in the statute referred to an referred to the statute in The illness exemplified not a sudden, temporary illness; extended illness, and judge constituted If the extended illness of a single the extended too must then so an emergency, coupled with shortage of judges due to vacancies, caseload. per-judge the court’s heavy which authorizes a quorum of two judges in the which authorizes a quorum DOCX 135 x x 1. at 1207 n. 3. n. 3. 1207 at ESEND As for the first component, the As for the first component, Rather than acknowledging the dramatically different state different the dramatically acknowledging Rather than . See supra supra . See . Rodriguez . Id. R 132 134 135 DLER from a low of 64.5 and 44.0 days, respectively, during the Reagan presidency to a high of the Reagan presidency during respectively, from a low of 64.5 and 44.0 days, presidency.”). Obama the during respectively, days, 218.0 and 227.3 133. 28 U.S.C. § 46(b). 136. § 46(d). 28 U.S.C. event the third judge becomes unavailable. event the third judge becomes only possible reading. As one is persuasive, though it is not the have instead Congress may commentator has pointed out, illness in order to immunize a a sudden, temporary contemplated violating section judge from two-judge quorum with one visiting the exemplified illness must be an extended illness, because “a must be an extended illness, because illness the exemplified designated after originally of a judge illness sudden, temporary is otherwise provided for in to serve on a particular panel § 46(d),” 188T was of appeals courts the federal facing crisis the caseload and to develop. only beginning extended had in mind that Congress unlikely would seem as a form of caseload, a heavy per-judge coupled with vacancies, 1982. section 46(b) in when it revised emergency section 46(b)’s the era of judiciary during of the federal panel instead both Rodriguez and the emergency amendment, example their analyses around the one statutory sought to build unavailability to, the but not limited of emergency—“including, of illness.” the court because of a judge of A of two components: analysis consisted 36524-aap_15-2 Sheet No. 24 Side B 05/20/2015 10:47:31 B 05/20/2015 24 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 25 Side A 05/20/2015 10:47:31 , a If 139 189 WASHINGTON POST PPEALS panel would appear panel would appear A that matter, recusals and that matter, The difficulty is that the The difficulty is that the OURTS OF OF OURTS 140 Rodriguez C Lending some credence to that that to credence some Lending 137 EDERAL F ) 5/14/2015) 12:26 PM ELETE D OT N , 753 F.3d at 1207 (“The statute contemplates the F.3d at 1207 (“The statute contemplates possibility of , 753 such On the other hand, the Second Circuit would not Circuit would other hand, the Second On the O Is the Eleventh Circuit in an “Emergency” State? in an “Emergency” Eleventh Circuit Is the (D 138 ANELSIN THE , 140 F.3d at 458–59. F.3d , 140 P DOCX 1. that the by the vacancies here, together with the extended shortage of judges caused United States v. Thompson, 70 F.3d 279, 280 n.** (3d Cir. 1995) (referring to Cir. 1995) (3d n.** 280 279, F.3d 70 Thompson, United States v. ESEND Potentially more problematic, however, is the second however, is the problematic, Potentially more R . . Desimone Rodriguez . See 138 139 140 DLER MERGENCY Volokh Conspiracy (June 12, 2014), http://www.washingtonpost.com/news/volokh- 2014), http://www.washingtonpost.com/news/volokh- Conspiracy (June 12, Volokh (concludingconspiracy/wp/ 2014/06/12/is-the-eleventh-circuit-in-an-emergency-state/ that case of ‘a sudden temporary illness’”) 46(b) is needed even in the “the exception to Process). Practice and Appellate of with Journal file on copy 2015; 10, (accessed Feb. certification of a 46(b) emergency section to allow a Third Circuit judge and a visiting second Third Circuit the death of the after as a quorum district an appeal judge to resolve the panel). originally on judge follows . It . . judge. illness of a single in the event of an extended emergency even fortiori contemplated by Circuit, qualifies as an emergency caseload of this judge heavy per omitted). (internal citation and footnote Congress.”) 137. Will Baude, Will 137. require a certificate of emergency in that situation, because it because that situation, in emergency a certificate of require requirement 46(b)’s majority with section compliance analyzes of decision. not at the time of panel formation, at the time then the that view were adopted, refer to an that the illness must determining to be correct in be case, the exception would in that because, extended illness, with quorum by a two-judge compliance unnecessary to ensure illness of the third judge following the sudden one visiting judge on the panel. if the extended of the panel’s reasoning—that component constitute an a single ill judge could unavailability of extended vacancies multiple then so too must emergency, coupled with a heavy caseload. arose “because of in the statute exemplified unavailability the reason for the unavailability qualifies that illness,” indicating be qualitatively and vacancies may the exception; the scope of for illnesses (and, different from E requirement. majority 46(b)’s certified an emergency has previously Third Circuit view, the of death rather in the case (though circumstances under such than illness). argued in his petition, an disqualifications). As Rodriguez represents an disqualification, a recusal or illness, like event,” whereas extended and dramatic temporary, “unexpected, inability or branches’ vacancies arise from the political .A 36524-aap_15-2 Sheet No. 25 Side A 05/20/2015 10:47:31 A 05/20/2015 25 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 25 Side B 05/20/2015 10:47:31 ROCESS P As an Because Because 144 , referring 142 expressio unius expressio unius RACTICE ANDRACTICE P 1982 U.S.C.C.A.N. 11, 37. 11, U.S.C.C.A.N. 1982 One commentator has commentator One This language—“cannot This language—“cannot 141 143 reprinted in PPELLATE A 1982 Senate Report note 29, at 27, note 29, note 2, at 11–14. 11–14. at 2, note ) 5/14/2015) 12:26 PM OURNAL OF OURNAL . Moreover, it is unclear how “the is unclear how . Moreover, it J supra ELETE supra HE , D OT N note 137 (“A branch of Congress is in charge of confirming judicial of confirming charge of Congress is in branch 137 (“A note O (D Petition, supra supra DOCX 1. Rodriguez 1982 Senate Report 1982 Senate ESEND Complicating matters further, the recusal/disqualification recusal/disqualification further, the matters Complicating apparent why the However, it is not readily R DLER 141. Baude, 142. Congress itself, through the Senate, helps fill vacancies by fill vacancies the Senate, helps itself, through Congress in a sense self- vacancies are extended nominees, confirming nominations. that the President has made provided imposed, a only when “such judges [i.e., exception applies from majority cannot sit.” the presiding court] est exclusio alterius because of illness” could ever unavailability of a [single] judge of judges of the a majority it impossible to empanel make circuit judge of a single presiding court. The unavailability panel, of a section 46(b)-compliant delay the formation might a were if there truly impossible but its formation would only be which does not describe any total of two judges on the circuit, recusal/disqualification the federal court of appeals. By contrast, judge. of a single exception does not speak in terms when it was apply only exception would recusal/disqualification while the requirement, the majority with to comply impossible lesser governed by some exception would be emergency standard. In this regard, the 190T seats. vacant to fill unwillingness the to include as meant whether Congress questioned similarly branches, of one of its own the inaction an emergency source of control. beyond its factors to external in addition so, an impossibility standard. If like something sit”—suggests only the arises whether it governs the question The or both exceptions. exception recusal/disqualification would exception the emergency language from absence of this of under the canon the former appear to suggest A rather than just thegenerally to both exceptions, states that they apply “when recusal/disqualification exception, of a court of appeals a panel to constitute it is impossible of that court.” of judges of a majority composed nominees, [and] I doubt that the President and the Senate’s joint decision not to appoint a not to appoint joint decision and the Senate’s I doubt that the President nominees, [and] an have thought that would Rather, I in the sense Congress meant. judge is an emergency President—whether emergency is something outside Congress and the of the hands of timing or circumstances.”). because of 143. 28 U.S.C. § 46(b). 144. 36524-aap_15-2 Sheet No. 25 Side B 05/20/2015 10:47:31 B 05/20/2015 25 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 26 Side A 05/20/2015 10:47:31 See 191 , and a certificate of PPEALS 1982 U.S.C.C.A.N. 11, 37. 11, U.S.C.C.A.N. 1982 A Under this reading, a Under this reading, ’s discussion does not ’s discussion Claiborne 150 violated section 46(b)’s violated section at 1464–67 (discussing appellants’ (discussing at 1464–67 while this situation would would situation while this 148 Report reprinted in 145 OURTS OF OF OURTS C see also id. consisted of three out-of-circuit judgescircuit note 4, at 383–85 (discussing the use of visiting judges EDERAL The court reasoned that “the chief that The court reasoned F Hearing a post-conviction motion in a in a motion Hearing a post-conviction note 29, at 27, note 29, ) 5/14/2015) 12:26 PM 149 Claiborne 147 supra refers to the situation in which an entire an in which situation to the refers ELETE supra , D OT Levy, N O see Report (D ANELSIN THE , 870 F.2d at 1466. at 1466. F.2d , 870 , 870 F.2d at 1466 n.2; 1466 at F.2d 870 , , United States v. Moody, 977 F.2d 1420, 1423 (11th Cir. 1992) (decision1992) 1423 (11th Cir. 1420, 977 F.2d States v. Moody, United , P 146 DOCX 1. See, e.g. Claiborne ESEND A Ninth Circuit panel, however, has suggested that suggested that however, has Circuit panel, A Ninth R . Claiborne . 1982 Senate Report Senate . 1982 150 146 DLER MERGENCY circuit’s chief judge has broad discretion to invoke the circuit’s chief judge has broad to be there he or she determines exception whenever emergency fall under the first exception, the the first exception, fall under only to that would apply standard impossibility the state that exception. requirement. majority when out-of- deal of discretion in deciding judge retains a great and concluded that he “effectively are needed,” judges circuit 46(b) when for the purposes of section certified an emergency under § 291(a).” he certified a necessity 145. E the example, recused or disqualified; court was for the standard applicable is the impossibility, necessity, not exception. emergency .A was case in which the defendant complicated procedurally that the a judge, that panel rejected the argument federal himself appeal to the direct panel assigned as a means of “information sharing”). of necessity remains required before the A certificate a court of appeals. on district judge to serve Chief Justice may designate an out-of-circuit § 292(d). 28 U.S.C. 149. interrelated statutory claims). rendered by three visiting judges after “all judges of this court entered an order recusing this court entered an of “all judges after visiting judges three rendered by themselves ‘from participating in this case and in any other cases relating to the Circuit an Eleventh investigation of S. Vance,’” the murder of theRobert Honorable judge). 147. 1989). Cir. (9th F.2d 1463 870 Claiborne, United States v. The panel at issue in 148. seated after submitted a “certificatethe chief judge of necessity” to the Chief Justice. 28 U.S.C. § 291(a). Congress amended § 291(a) after § 291(a) Congress amended 28 U.S.C. § 291(a). judge; rather, the circuit’s an out-of-circuit necessity is no longer required to designate only Chief Justice need the request, and a make only need the circuit justice or chief judge find the designation to be “in the public interest.” Federal Courts Administration Act of amended this provision Congress tit. I, § 104, 106 Stat. 4506. 102-572, L. No. 1992, Pub. in order to “allow[ judges of the courts of appeals ] a regular opportunity to sit on other courts of appeals from time means of promotingto time, on an exchange basis, as a (“Such a program at 27 (1992) 102-342, No. education in court administration.” S. Rep. would represent a cost-effective means of familiarizing judges of the courts of appeals with management and administrative techniques to work effectively in other courts, that appear in possible adoption for adaption and those techniques to consider and thus allow them their own courts.”); 36524-aap_15-2 Sheet No. 26 Side A 05/20/2015 10:47:31 A 05/20/2015 26 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 26 Side B 05/20/2015 10:47:31 ’s ROCESS While While P 155 Claiborne RACTICE ANDRACTICE The Use of Visiting Judges inUse The P 1982 U.S.C.C.A.N. 11, 36. 11, U.S.C.C.A.N. 1982 1982 Senate Report 1982 Senate reprinted in PPELLATE A 636, 1193 (Bryan A. Garner ed., 10th ed. 636, 1193 (Bryan A. Garner or “exigent circumstances.” or “exigent Nicholle Stahl-Reisdorff, ICTIONARY note 29, at 26, note 29, D 154 ) 5/14/2015) 12:26 PM OURNAL OF OURNAL See See J Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 461–62 461–62 Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, AW AW 49 (Fed. Judicial Ctr. 2001 update 2006) (including sample (including sample 2006) 2001 update Ctr. Judicial 49 (Fed. cf. and it should be assumed that Congress that Congress be assumed and it should supra ELETE L 1982 U.S.C.C.A.N. at 19. U.S.C.C.A.N. at 1982 HE , D S 152 ’ OT N O LACK (D And the threshold to designate an out-of-circuit to designate an out-of-circuit And the threshold , Bailey v. United States, 516 U.S. 137, 146 (1995) (“We assume that assume 146 (1995) (“We 137, U.S. v. United States, 516 , Bailey , B reprinted in 153 DOCX 151 1. at 9, at See, e.g. 1982 Senate Report 1982 Senate See, e.g. ESEND Supporting that argument, the argument, Supporting that Nonetheless, there is reason to question to reason there is Nonetheless, . Id. R 155 DLER the Federal District Courts the Federal certificate of necessity). 152. generally describes both section 46(b) exceptions as “the most section 46(b) exceptions as “the generally describes both unusual circumstances” aside from circumstances it gives no indication about what these or give rise to an emergency, illness would constitute section 46(b)’s exceptions descriptors arguably indicate that scope. Nonetheless, one might were intended to be narrow in would consider the extended argue that the 1982 Congress 151. form that does not require The certificate of necessity appears to be a standardized the necessity. an explanation of deliberately required differentdeliberately required certificates for different situations. to be less would appropriately appear judge (“necessity”) visiting judges multiple designate to than the threshold stringent requirement majority with section 46(b)’s and dispense exception 46(b)’s emergency Thus, section (“emergency”). than necessity. more something arguably requires 192T would of appeals courts Federal judges. visiting for a “need” standard when meeting that little difficulty have seemingly per-judge and a heavy vacancies with multiple confronted caseload. A with section of necessity certificate of section 291(a)’s equation are of emergency.46(b)’s certificate emergency Necessity and concepts, distinct (2002) (recognizing longstanding rule that “courts must presume that a legislature says in a citations and it says there”) (internal in a statute what means statute what it means and quotation marks omitted). 154. 2014) (defining “emergency” as either “[a] sudden and serious event or an unforeseen or an unforeseen serious event sudden and either “[a] 2014) (defining “emergency” as action or remedy harm” to avert, control, that calls for immediate change in circumstances urgent needor “[a]n relief or help”; and defining for “necessity” in several ways, including as “[s]omething that must be for done or accomplished any one of various reasons, ranging from the continuation life of itself to a legal requirement of some kind to an intense personal desire” or moral compulsion;or “[p]hysical the pressure of circumstance,” and noting further that normally supplies a sense“[c]ontext while of the degree of urgency,” emergency”). in an acts who a person defense for “a may supply recognizing that necessity 153. two terms because it intendedCongress used each term to have a particular, nonsuperfluous meaning.”); 36524-aap_15-2 Sheet No. 26 Side B 05/20/2015 10:47:31 B 05/20/2015 26 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 27 Side A 05/20/2015 10:47:31 Sen. 193 statement-of-senator / nominations13 (July 31, - press / PPEALS A judicial - on - OURTS OF OF OURTS C committee - www.leahy.senate.gov , http://www.mccain.senate.gov/public/index.cfm/ , http://www.mccain.senate.gov/public/index.cfm/ :// EDERAL judiciary F , http - ) 5/14/2015) 12:26 PM And When Does It End? And When Does ELETE senate - D OT N O B. When Does an Emergency Arise? Emergency Arise? B. When Does an (D chairman - ANELSIN THE , Patrick J. Leahy, Chairman, Sen. Judiciary Comm., Press Release, Comm., Sen. Judiciary Chairman, , Patrick J. Leahy, P vt - DOCX d and it may also be useful in determining whether a in determining also be useful and it may - 1. 156 leahy ESEND - Compounding the uncertainty, two questions of degree two questions the uncertainty, Compounding R . See, e.g. 156 DLER MERGENCY patrick Statement on Judicial Nominations Judicial Statement on section 46(b) emergency exists. section 46(b) emergency - arise even assuming that extended vacancies coupled with heavy with heavy that extended vacancies coupled arise even assuming exception. First, emergency section 46(b)’s caseloads can trigger arise? Clearly the Eleventh at what point does an emergency four judicial in late 2013, with Circuit was in a perilous situation and the heaviest vacant, its judgeships one third of emergencies, But what ifper-judge caseload of any circuit. a court was to with, say, only one vacancy and a certify an emergency caseload? What if the court per-judge moderate comparatively no vacancies at all but experienced a substantial experienced not be cutoffs may mathematical While filings? increase in employed methodology necessary, the adjusted-filing caseload Courts to Office of the United States by the Administrative is one that Senators often judicial emergencies determine invoke, E unusual” “most to be of today caseloads crushing and vacancies a single of example statutory the Moreover, and “exigent.” beyond “emergency” broadens the word arguably judge’s illness not might one example, that Without connotation. its everyday increased per-judge to consider an be inclined otherwise of an to the level rising vacancies) as to extended (due caseload if the court declines to request particularly emergency, case-management its or modify judgeships additional techniques. .A 2014) (“Since the beginning of this year, we have reduced the vacancies on our Federal on our Federal the vacancies reduced have 2014) (“Since the beginning of this year, we of judicial emergency the number courts by over areduced third, from 92 to 57, and Press Release, John Sen., vacancies by nearly half, from 37 to 19.”); McCain, U.S. Nominees Judicial Arizona McCain on 13 the 2014) (“Of (May 14, press-releases?ID=f43ecf45-c34c-434b-a417-c0c8e3bb07c6 for this court, 6 are currently with the large authorized judgeships vacant. This, together caseload, led the District of Arizona to be declared a ‘judicial emergency’ in 2011.”) (both Process). Practice and Appellate with Journal of file copies on 2015; 12, accessed Feb. 36524-aap_15-2 Sheet No. 27 Side A 05/20/2015 10:47:31 A 05/20/2015 27 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 27 Side B 05/20/2015 10:47:31 ., 158 EP R and and , USA USA , The ROCESS at 1–2. at 1–2. 159 160 P AILY Id. , D RACTICE ANDRACTICE P Eleventh Circuit Chief Declares Circuit Chief Declares Eleventh PPELLATE Ultimately it did not last that not last that Ultimately it did A 157 files/courtdocs/clk/GeneralOrder42.pdf (accessed (accessed files/courtdocs/clk/GeneralOrder42.pdf / default / note 161, at 1. In order to “conserve judicial resources, ) 5/14/2015) 12:26 PM OURNAL OF OURNAL J ., Oct. 21, 2014. A copy of General Order 42 is available at Order 42 is available at General of A copy Oct. 21, 2014. ., ), http://www.usatoday.com/story/news/politics/2014/10/22/ Senate Confirms Julie Carnes to Eleventh Circuit by 94-0 Confirms Senate Senate Confirms Jill Pryor to Eleventh Circuit Jill Pryor to Confirms Senate sites / EP ELETE AM supra Special Report: America’s Perpetual State of Emergency Perpetual America’s Report: Special HE R D , ., May 12, 2014, at A1. A1. 2014, at 12, ., May OT Robin Rosenbaum Unanimously Confirmed for Federal Appellate for Federal Confirmed Unanimously Rosenbaum Robin N note 77, at 1. at 77, note AILY EV O General Order 42 explained that “[t]he 42 explained that “[t]he General Order (D , D .R ., July 21, 2014. 2014. 21, ., July 162 At the same time, certifying an emergency is not emergency an certifying time, same At the 161 US supra supra EP B DOCX 163 R 1. Gregory Korte, Gregory Korte, AILY AILY General Order 42 ESEND There are two ways to think about the duration issue. One There are two ways to think about Second, and relatedly, how long should an emergency last? last? an emergency should how long relatedly, and Second, . Cf. , D R wwwca11.uscourts.gov , D :// 163 DLER avoid inefficiencies, and prevent unnecessary delay,” the Order allowed emergency panels to resolve and administer any cases that had already been argued or submitted. 9:11 2014 23, Today (Oct. http 160. R. Robin McDonald, McDonald, Robin R. 160. president-obama-states-of-emergency/16851775/ (“U.S. presidents have declared 52 states states have declared 52 presidents president-obama-states-of-emergency/16851775/ (“U.S. 157. Palmer, 157. Judge Birch’s vacant seat was filled in September 2014. in September was filled vacant seat Judge Birch’s Chief Judge with one vacancy remaining, following month, the an end to declaring order a new general Carnes issued emergency. General that led to the issuance of Order No. 41 circumstances composed panels will be so that no more have changed enough that it Court,” but indicated judges of this of fewer than two panels are far as future only “as would have an impact concerned.” as soon as an emergency that courts should certify argue might as de-certify the emergency the requisite conditions exist and would That symmetry conditions evaporate. soon as those same any confusion about what the requisite conditions eliminate from dragging on emergencies declared were, and discourage too long. 194T and indefinite duration, to be of Order 41 purported General [didn’t] that “he in an interview Carnes explained Chief Judge the court must of active judges specific number a mind have in be no that “there would the order,” but he would lift have before “the court actually once measure” for the emergency more need spots filled.” had all 12 of its 2014, July vacant seat was filled in Judge Edmondson’s A seat was filled in May 2014, vacant long. Judge Barkett’s Feb. 12, 2015; copy on file with Journal of Appellate Practice and Process). Process). Appellate Practice and of file with Journal on copy 2015; Feb. 12, 162. 158. John Pacenti, Court 159. R. Robin McDonald, McDonald, Robin R. 159. Vote Sept. 8, 2014. 2014. Sept. 8, 161. 17, No. 42 (Oct. of Appeals, Eleventh Circuit, General Order United States Court Alyson M. Palmer, 42]; Order 2014) [hereinafter General End to Emergency 36524-aap_15-2 Sheet No. 27 Side B 05/20/2015 10:47:31 B 05/20/2015 27 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 28 Side A 05/20/2015 10:47:31 195 ODRIGUEZ R PPEALS A OURTS OF OF OURTS C ORWARD AFTER F EDERAL OING F ) 5/14/2015) 12:26 PM :G ELETE D OT N O (D ANELSIN THE P ONCLUSION DOCX 1. V. C ESEND Various circuits have concluded that judicial vacancies, Various circuits have concluded ultimately not the courts, is Nonetheless, Congress, R DLER MERGENCY of emergency since Congress passed the National Emergencies Act in 1976. Thirty are still of emergency since Congress passed the National Emergencies Act in 1976. Thirty are still with Journal of Appellate Practice and copy on file 2015; in effect.”) (accessed Feb. 12, Process).Fifthoccurred in the to have emergency appears section 46(b) The longest Circuit, which did not declare an end to its emergency until 2007. 1999 Order Vacating Declaration of a Judicial Emergency Under 28 U.S. Code, Section 46(b), 2007 WL 43971 § 46(b) (5th Cir. Sept. 28, 28 U.S.C. Declaring an Emergency Under (Jan. 8, 2007); Order 1999). coupled with a heavy caseload, can trigger section 46(b)’s coupled with a heavy caseload, Although the requirement. exception to the majority emergency federal courts of appeals should statutory issue is debatable, the confronted conclusion when not be criticized for reaching that the vacancies and crushing caseloads. To with extended contrary, by enlisting additional visiting judges, they are justice order to administer available resources in maximizing And, in their under difficult and trying circumstances. visiting judges the benefits to designating more estimation, forged in the trenches, outweigh the costs. That judgment, should be afforded deference. of visiting judges, and it has responsible for regulating the use E Moreover, mathematics. of matter a quantifiable necessarily be should perhaps discretion, and have the courts should onset even beyond the as possible, to wait as long encouraged, of an emergency, the hope that one, with before certifying 46(b) of section and render invocation will improve conditions to true the exception would limit That restraint unnecessary. But, in that case, it as a last resort. maintain and emergencies de-certify an necessarily be required to courts would not in improvement an following immediately emergency given its heavy Circuit, the Eleventh example, For conditions. are filled), (even when all of its judgeships per-judge case load after, in a state of emergency have considered itself to be may by have exercised restraint vacancy, but may say, the second fourth vacancy. until after the emergency the waiting to certify end to the emergency an it declared explain why That might filled. of the four vacancies were after only three .A 36524-aap_15-2 Sheet No. 28 Side A 05/20/2015 10:47:31 A 05/20/2015 28 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 28 Side B 05/20/2015 10:47:31 167 ROCESS 165 P note 20, at 565– at note 20, supra 1982 U.S.C.C.A.N. 11, 11, U.S.C.C.A.N. 1982 , a visiting judge cast the , a visiting RACTICE ANDRACTICE P 580 F. App’x 715 (11th Cir. Roy reprinted in reprinted PPELLATE Some have suggested that have Some Brudney & Distlear, & Brudney A 168 United States v. Davis, 754 F.3d 1205 (11th Cir. F.3d 1205 (11th v. Davis, 754 United States And some have also suggested that And some see also See 169 note 22, at 302–03, 305–08, 313–14 (summarizing 313–14 note 22, at 302–03, 305–08, note 29, at 9, 26, at note 29, note 19, at 358–59. 19, note rehearing en banc granted 573 F. App’x 925 (11th Cir. 2014); United States v. Roy, United States v. 2014); (11th Cir. App’x 925 573 F. and they sit by designation the most. and they sit by ) 5/14/2015) 12:26 PM OURNAL OF OURNAL Others have similarly expressed concern concern expressed have similarly Others J 166 supra note 18, at use of visiting 22–23 (including table charting 164 supra supra supra ELETE , HE D OT note 22, at 305 (citation omitted). Indeed, during a recent oral omitted). Indeed, during at 305 (citation 22, note note 22, at 305. A recent example: On September 3 and 4, 2014, the 4, 2014, example: On September 3 and A recent 22, at 305. note N supra supra O (D , a visiting judge authored the panel opinion, 754 F.3d at 1208 n.* n.* 1208 at F.3d 754 panel opinion, the authored , a visiting judge supra supra , Benesh, , Benesh, supra DOCX Budziak, 1. Davis 1982 Senate Report 1982 Senate rehearing en banc granted rehearing ESEND The use of district judges in particular has engendered judges in particular has The use of district . See, e.g. . See R 166 167 DLER 19, 36. Benesh, 165. opinions authored by district judges sitting by designation carry opinions authored by district judges an “unavoidable asterisk.” substantial criticism, visiting district judges have expressed concern that Some were not nominated, that they presumably “exercise a function . . thereby “ignor[ing] . appointed to perform,” or confirmed, functions the trial and appellate between distinctions important to be best suited kinds of persons who are likely and between the these functions.” to perform 164. 196T enacted Congress their use. about concerns expressed previously that it believed because requirement 46(b)’s majority section panels on appellate judges to predominate visiting allowing and predictability on the stability an adverse impact would have precedent. of circuit A when judges, even that visiting form a panel they do not of the circuit; and the law likely to destabilize are more majority, opinions by Judge Birch’s concern that have echoed some result in en banc likely to more visiting judges are review. Eleventh Circuit granted rehearing in two cases, each of which was originally decided by a was originally of which each Eleventh Circuit granted rehearing in two cases, panel that included a visiting judge. 2014), Cir. 2014), 761 F.3d 1285 (11th deciding vote, 761 F.3d at 1286, 1298 (indicating that Judge Wilson of the Eleventh Circuit of the Eleventh (indicating that1298 Judge Wilson F.3d at 1286, deciding vote, 761 Circuit filed a dissent, and the Eleventh of Carnes that Chief Judge opinion, wrote the panel that Judge Dalton of the United States District Court Florida for the Middle District of was of the panel). the third member 2014). In and in (referring to Judge Sentelle of the D.C. Circuit), argument in the United States Supreme Court, former Solicitor General Paul Clement argument in the United States Supreme Court, former suggested that opinions written by district judges sitting by designation are entitled to less weight than those written by circuit judges: criticisms). Benesh, 169. 66 (“[D]esignated trial court visitors have helped decide more than 75,000 court of appeals more than 75,000 court of appeals trial court visitors have helped decide 66 (“[D]esignated cases since 1980.”). 168. Saphire & Solimine, judges by type from 1975 to 2010, and noting that “district court judges, both senior and court judges, both senior “district and noting that 1975 to 2010, judges by type from more service as visitors with active districtactive, provide than their appellate brethren, playing the largest role”); court judges 36524-aap_15-2 Sheet No. 28 Side B 05/20/2015 10:47:31 B 05/20/2015 28 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 29 Side A 05/20/2015 10:47:31 171 , No. , No. Sekhar note 20, at supra 197 PPEALS A note 19, at 380 (“One district judge, Paul Clement Disses Judges SittingPaul Clement Disses By OURTS OF OF OURTS C supra (Laughter). , Josh Blackman’s Blog (Apr. 23, 2013), http://josh . Second, I would say that the I would second thing I . Second, Oral Argument Transcripts—October Term 2013 Argument Oral EDERAL F ) 5/14/2015) 12:26 PM paul-clement-disses-judges-sitting-by-designation-sotomay Josh Blackmon, 61, http://www.supremecourt.gov/search.aspx?Search=12- http://www.supremecourt.gov/search.aspx?Search=12- 61, / 23 Marbury ELETE / D 04 / OT see also note 18, at 11. N Saphire & Solimine, note 22, at 306–07, 313–14; Brudney & Distlear, 22, at 306–07, 313–14; Brudney note O 2013 here. / (D ANELSIN THE supra supra supra P blog / see also case because it is sort of the pro genitor [sic] of this whole line of DOCX 1. Marbury 170 ESEND Sekhar v. United States Sekhar Structurally too, there remains an inherent awkwardness to awkwardness an inherent too, there remains Structurally R MR. CLEMENT: Well, a couple of things, Justice Sotomayor. I went back to the I went Justice Sotomayor. a couple of things, Well, CLEMENT: MR. Tropiano I noticed it was written by a One, noticed two things. Circuit cases, and I Second by that don’t mean anything I—I I mean, districtSo designation. by judge sitting other than this is not noticed is that the debt— judge, I as a district court think when I sat I Oh, SOTOMAYOR: JUSTICE insulted by that. been have would good thing Well, it’s not—it’s a you’re no longer sitting inMR. CLEMENT: Honor— Your that capacity, SOTOMAYOR:JUSTICE Okay. It’s [sic] really is, for you. —because I— I certainly mean you no offense. You could MR. CLEMENT: write DLER MERGENCY Those fears may still have some resonance today for out-of- resonance today for have some still Those fears may by senators or who were not screened judges, circuit visiting in that they visit, and, the circuits commissions from nominating less accountable to, or representative be considered sense, may E to as subordinate themselves view tend to judges district visiting to a reluctance and exhibiting too much judges, deferring circuit dissent. court deciding appointed to one with judges mobility, judicial representational can also raise another. Mobility cases in there was Congress authorized visiting judges, concerns. Before judges unfamiliar “driven largely by fears of an aversion on local communities.” interpretations foreign legal imposing .A 597–98, 599; 597–98, decision, ‘spoke of the temerity required of a district dissenting from a Sixth Circuit panel he sits by which panel on of an appellate in dissenting from the opinion judge omitted). designation.’”) (citation Budziak, 171. transcript and noting that, in Blackman’s it experiences, “clerking was not unheard of to to weren’t suppose[d] just You judge. written by a visiting give less weight to an opinion sits on the Supreme who now sat by designation . . . who it . . . to a judge acknowledge of Appellate Practice copy on file with Journal 2015; and Court”) (accessed Feb. 13, Process). Benesh, 170. or-shoots-back/ (Apr. 23, 2013) (quoting Clement/Sotomayor exchange(quoting 2013) from or-shoots-back/ (Apr. 23, 12-357 357&type=Site (2013) (accessed Feb. 13, 2015; copies on file with Journal of Appellate on file with Journal of Appellate copies 2015; Feb. 13, 357&type=Site (2013) (accessed Practice and Process); Supreme Court of the United States, Supreme Court of Designation, Sotomayor Shoots Back Designation, Sotomayor blackman.com 36524-aap_15-2 Sheet No. 29 Side A 05/20/2015 10:47:31 A 05/20/2015 29 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 29 Side B 05/20/2015 10:47:31 ROCESS P RACTICE ANDRACTICE But Congress must But Congress must P 174 PPELLATE A as the impact of visiting judges is as the impact of 173 ) 5/14/2015) 12:26 PM OURNAL OF OURNAL J ELETE HE D note 14, at 2415–17 (discussing court practices note 14, at 2415–17 in relation to OT N O supra supra (D note 18, at 4, 162–63 (purporting, in 2011, “to provide the first thorough, the first thorough, provide “to in 2011, (purporting, 162–63 18, at 4, note note 22, at 315 (“In short, we (political scientists especially) know woefully especially) know short, we (political scientists (“In 22, at 315 note has solidified the judiciary’s broad interpretation of broad interpretation the judiciary’s has solidified DOCX Levy, Levy, 1. 172 at 24. at supra supra supra supra ESEND Whether these concerns are warranted or exaggerated or exaggerated warranted are concerns these Whether The current statutory balance allows for the regular, The current statutory balance certifications based on Even if Congress takes no action, . Id. . See R 172 174 DLER little about these [visiting] judges . . . . It is about time we started paying attention to them about time we started paying attention to them . It is judges . . . little about these [visiting] (footnote cases.”) well affect how they decide characteristics that may and to their peculiar would be a study comparing the impact section 46(b) omitted). Of particular relevance for theywhich cases in panel majority and they formed a which in cases in of visiting judges did not. systematic study for future of the visiting judge process” and suggesting avenues research); Benesh, 173. the Thus, in summarizing of this article. scope Resolving this debate is beyond the to suggest that they author does not purport use of visiting judges, the concerns about the are ultimately persuasive. 198T aggravating And, their decisions. to subject populace of, the create the “visiting judges that speculated have some those fears, by policy goals” judges to pursue for appellate opportunity of the decision-making composition the[ ] ideological “alter[ing] group.” subject to debate, remains empirical research. an area ripe for further A charged with as it is evaluate these concerns, continue to difficult competing between a delicate balance maintaining already overburdened the one hand, limiting On considerations. risks to the visiting judge per panel poses circuits to one the face of vacancy- in justice of appellate administration liberal use of other hand, the caseloads. On the exacerbated to risks poses potential panel majorities to form visiting judges as an institution. the judiciary and both circuit precedent a panel when they do not form periodic use of visiting judges their use beyond that. but strictly circumscribes majority, original calibration now that Congress may need to revisit that Rodriguez The federal not. exception. Or it may section 46(b)’s emergency since the early emergencies courts of appeals have certified fit to revise section 46(b) in 1990s, and Congress has not seen signal of approval. response, arguably sending a tacit receive greater should combination the vacancy-caseload visiting judges, and observing that visiting judges are “not widely discussed in the judges are “not widely visiting that and observing visiting judges, visitors is clearlyliterature,” and “the reliance on research”); one promising area for Budziak, 36524-aap_15-2 Sheet No. 29 Side B 05/20/2015 10:47:31 B 05/20/2015 29 Side Sheet No. 36524-aap_15-2 36524-aap_15-2 Sheet No. 30 Side A 05/20/2015 10:47:31 199 PPEALS A § III(C)(1). § III(C)(1). may be somewhat diminished given OURTS OF OF OURTS C See supra supra See Rodriguez EDERAL F ) 5/14/2015) 12:26 PM as a precedent that withstood legal withstood that precedent as a as must the crisis in volume. Statistics Statistics in volume. as must the crisis ELETE D 176 OT N note 12, at 6. at note 12, O (D notes 13–15 and accompanying text. accompanying and 13–15 notes Thus, as a practical matter, the federal courts of courts the federal matter, Thus, as a practical ANELSIN THE P supra Rodriguez 175 DOCX 1. But perhaps emergency panels, if they continue as But perhaps emergency panels, 177 ESEND Not only would such dialogue be healthy for its own sake, such dialogue be healthy for its Not only would R . See supra supra . See 177 DLER MERGENCY the emergency panel’s own stake in the issue. the issue. stake in own panel’s the emergency 176. Tobias, 176. 175. value of the precedential However, challenge. section 46(b) certifying to continue appeals are likely multiple confronted with when they are inevitably emergencies is practice that Again, a heavy per-judge caseload. vacancies and should procedure defensible. But an emergency unsurprising and after receiving due discussion. only normalized become all, “[t]he judicial vacancy even help spur progress. After it may end,” crisis must and the heavy per-judge vacancies extended documenting have failed to trigger meaningful they exacerbate caseloads controversial case-management reform thus far. Nor have the as a have been forced to resort techniques to which the courts result. help bring may attention, predicted, and if they garner increased those crises to their tipping point. E requirement majority 46(b)’s with section Dispensing scrutiny. but is gradually, combination the vacancy-caseload based on extended Furthermore, institutionalized. becoming quietly, persist for the to are likely heavy caseloads vacancies and circuit now of appeals can the federal courts future, and foreseeable rely on .A 36524-aap_15-2 Sheet No. 30 Side A 05/20/2015 10:47:31 A 05/20/2015 30 Side Sheet No. 36524-aap_15-2