Circuit Justice Roberts’s Eleven-and-a-Half-Day Gap

Did Chief Justice Roberts accidentally create grounds for reopening (and even rearguing) Banner v. United States?

Here’s the argument:

This case is an appeal decided today [Hat Tip to How Appealing for the link] by a panel consisting of Chief Justice Roberts, sitting as a Circuit Justice, and D.C. Circuit Judges Edwards and Rogers. Chief Justice Roberts is the judge formerly known as "Circuit Judge Roberts," who was originally assigned to hear the appeal in that capacity, along with Edwards and Rogers.

On September 29, 2005, Circuit Judge Roberts took the oath of office as Chief Justice of the United States. And we can only presume that at that point, if not before, he effectively resigned his commission as U.S. Circuit Judge for the District of Columbia Circuit. Indeed, the Federal Judicial Center website states, in its entry for "Circuit Judge Roberts," that Roberts’s "[s]ervice terminated on September 29, 2005, due to appointment to another judicial position."

On October 11, 2005, the Supreme Court issued an order assigning Chief Justice Roberts to be Circuit Justice for the D.C. Circuit. Under 28 U.S.C. § 43(b), "Each Court of Appeals shall consist of the circuit judges of the circuit in regular active service. The circuit justice and justices or judges designated or assigned shall be competent to sit as judges of the court." So, in plain English, Chief Justice Roberts was a member of the circuit at the time of the opinion—i.e., today.

The problem, however, is that Roberts does not appear to have been a member of the circuit, either as a circuit judge or as a circuit Justice, between the date he left the court (September 29) and the date of the circuit Justice assignment order (October 11). What’s more, it’s not clear how, when he "rejoined" the court, he also rejoined the panel. After all, the normal procedure on most circuits (and, we presume, the D.C. Circuit) when a vacancy arises is either to leave the third seat vacant since the two remaining judges constitute a quorum, or to randomly assign a third judge.

This may seem like pedantry, but it was this very kind of punctilio that forced the Supreme Court to vacate a whole slew of criminal convictions affirmed by an "improperly constituted" Ninth Circuit panel in Nguyen v. United States in 2003. In Nguyen, the Court held that the presence of a judge who was not a duly constituted member of the court was grounds to invalidate any decision in which he participated, even when the remaining two judges would have constituted a quorum and would have chosen the same outcome.

It is certainly possible that the proper order reassigning Circuit Justice Roberts to the original panel does exist, and was filed by the Clerk of the D.C. Circuit. We have been able to find no such order, however, on the D.C. Circuit’s website, and a cursory search of the PACER docket summary for Banner reveals none. If there was indeed no such order, it certainly appears as if the losing party has a good claim that the panel decision is voidable under Nguyen.

In a subsequent post (which we hope never to write), we’ll explain whether Chief Justice Roberts would have to recuse from the cert. petition from the reargument, since he would no longer be a member of the panel below.

[Co-authored by Michael Froomkin and Steve Vladeck for cross-posting on PrawfsBlawg and Discourse.net, as an unfortunate result of our offices being close together.]