Is the Eleventh Circuit in an “emergency” state?

June 12

Federal courts of appeals normally hear and decide cases in three-judge panels. In many circuits, these panels can include a “visiting” judge — usually either a district judge from within the circuit or a court of appeals judge from a different circuit who comes in to pinch-hit. But federal law, 28 U.S.C. 46(b), also establishes limits to those visits:

In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges, at least a majority of whom shall be judges of that court, unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency including, but not limited to, the unavailability of a judge of the court because of illness.

This means that normally you can only have one visiting judge per panel. The other two have to be active or senior judges from the home circuit.

But the Eleventh Circuit (that’s Florida, Georgia, Alabama) has a lot of visiting judges, and only eight of its twelve statutorily-authorized seats are currently filled. So last December, Chief Judge Carnes entered “General Order No. 41,” which declared that there is an “emergency” within the meaning of 46(b), allowing the visiting judges to form a majority (or all, I guess) of an Eleventh Circuit panel.

Mario Ponce Rodriguez, who lost before such a panel, argued that the Eleventh Circuit had misapplied the emergency exception. Perhaps unsurprisingly, the panel disagreed and concluded that the Eleventh Circuit order was lawful.

I don’t know whether the decision was wrong, but it’s not obvious that it’s right either. The panel’s main authority was the fact that the Fifth Circuit had done the same thing twice before — though the court does not say whether those Fifth Circuit orders had ever even been upheld in court.

The panel’s other chief argument was that since “the statute contemplates the possibility of such emergency even in the event of an extended illness of a single judge … it follows a fortiori that the extended shortage of judges caused by the vacancies here, together with the heavy per judge caseload of this Circuit, qualifies as an emergency contemplated by Congress.” I’m not so sure this follows a fortiori. A branch of Congress is in charge of confirming judicial nominees, I doubt that the President and the Senate’s joint decision not to appoint a judge is an emergency in the sense Congress meant. Rather, I would have thought that an emergency is something outside of the hands of Congress and the President — whether because of timing or circumstances.

And while this final point is really in the weeds, I’m also not even sure that the panel is right that an “extended illness” necessarily counts as an “emergency.” The panel argues in a footnote:

We believe the illness example must refer to an extended illness, because a sudden, temporary illness of a judge after originally designated to serve on a particular panel is otherwise provided for in Section 46(d) (“A majority of the number of judges authorized to constitute a court, or a panel thereof, . . . shall constitute a quorum.”)

This is an argument based on redundancy. But it seems to me that the two statutes do slightly different things. Imagine that two Eleventh Circuit judges and one visiting judge are on a panel together. One of the Eleventh Circuit judges falls very ill and can no longer serve on the panel. Section 46(d) tells you that the remaining two judges are a quorum and can decide the case together. But since there are now only two judges left, one of whom is a visitor, they would violate the 46(b) rule that “at least a majority” have to be non-visitors. So the exception to 46(b) is needed even in the case of “a sudden temporary illness.”

UPDATE: A reader points out that the Eleventh Circuit actually has nine judges now, since Judge Rosenbaum was confirmed last month. I wonder how many new judges it would take for the Eleventh Circuit to think that the emergency has gone away.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).
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