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Friday, November 04, 2005

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.]

Posted by Steve Vladeck on November 4, 2005 at 04:52 PM in Current Affairs | Permalink

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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 R... [Read More]

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Comments

Following up on my earlier comment (and I see that you also had quoted sec. 43(b), my apologies for missing it), I wonder how this is typically handled in the more common situation where a District Judge is elevated ot the Circuit Court but retains control of a portion of his existing District Court docket to finish pending opinions, etc.

Posted by: Ira B. Matetsky | Nov 6, 2005 2:30:12 PM

As pointed out on SCOTUSblog, 28 U.S.C. sec. 43(b) specifically provides that the Circuit Justice (which Chief Justice Roberts is for the D.C. Circuit) may sit as a member of the Court of Appeals. Particularly in a situation where he was already a member of the panel -- so he would be recused from sitting on the same case if it reaches the Supreme Court in any event -- I think that resolves the matter.

Posted by: Ira Brad Matetsky | Nov 6, 2005 2:19:05 PM

Joe -- You and Howard Bashman both think that distinction -- that Nguyen was about the presence of a non-Article III judge -- is the critical difference. But Nguyen itself did not decide the issue on constitutional grounds. Instead, the Court held that the statutes governing the composition of the Courts of Appeals didn't countenance the appointment of Chief Judge Munson. Surely, this case is distinguishable on those facts, but the critical point to us, to the extent this is more than just an amusing diversion, is the overly restrictive formalism that produced the majority's opinion. That same brand of formalism could easily suggest a real problem in a gap-in-service case, even if the case looks a bit differently from Nguyen.

Posted by: Steve Vladeck | Nov 5, 2005 4:25:04 PM

I do see that it was not tried on those grounds, but upfront the opinion notes it is about an Art. IV judge serving on an Art. III court, so it does seem like a notable difference ... even if there is a sound disqualification claim here.

Posted by: Joe | Nov 5, 2005 1:41:47 PM

As to Nguyen, is the fact that the case concerned a non-Article III judge a factor?

Or, rather, is it a way to differentiate the two? I'd add that the vote was close as to disqualification in Nguyen, so, maybe, this difference is important on that point too.

Posted by: Joe | Nov 5, 2005 9:13:01 AM

To Anon, it _had_ always been a non-issue. I agree that Michael and I are being a little too formalistic, but no more so than the majority in Nguyen. For that, we need look no further than then-Chief Justice Rehnquist's _dissent_ in Nguyen.

As to Paul, the question that we have is how the panel was "reconstituted" on October 11... if Chief Justice Roberts did it by fiat, well, it's not like the tanks are rolling, but it still might raise Nguyen concerns... As a general rule, should the Chief Justice be able to place himself on any circuit panel on which there is a vacancy? Besides the obvious, how is this case different?

It's all a bit absurd. But only a bit...

Posted by: Steve Vladeck | Nov 4, 2005 7:40:48 PM

Scalia too. Ellsberg v. Mitchell, 807 F.2d 204 (D.C. Cir. 1986).

Posted by: Anon | Nov 4, 2005 6:48:50 PM


This is a non-issue, or at least it always has been in the past. John Paul Stevens finished opinions of the Seventh Circuit as Circuit Justice. E.g., Hill v. Trustees of Indiana Univ., 537 F.2d 248 (7th Cir. 1976). Clarence Thomas finished opinions of the D.C. Circuit as Circuit Justice. E.g., Lamprecht v. F.C.C., 958 F.2d 382 (D.C. Cir. 1992). You're being a little too formalistic about this.

Posted by: Anon | Nov 4, 2005 6:40:41 PM

Is there any reason to believe that either (a) he did something in the case between 9/29 and 10/11? If not, is there any reason to believe that the mere fact that he rejoined the panel rather than having a random assignment it in itself sufficient to make the panel not "properly constituted?"

Posted by: Paul Gowder | Nov 4, 2005 6:25:31 PM

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