Panel Shopping and Voluntary Mooting: A Problem Worth a Solution?

I've been thinking a lot lately about the government's successful mooting of the "enemy combatant" phase of the Jose Padilla case, at least partially because of the recent developments in the case deftly summarized by my colleague Michael Froomkin over at Discourse.net here and here.

To whatever extent the shenanigans in Padilla (and Judge Luttig's angry opinion in response) brought some broader attention to the problem of voluntary mooting on appeal, however, the attention was focused on the Supreme Court and the last possible stage of litigation.

But voluntary mooting happens with far greater frequency in the courts of appeals, especially once the composition of the panel is publicly disclosed (admittedly, not so much an issue in the Supreme Court). Howard Bashman has elsewhere documented the differences among the circuits with respect to when a panel's identity is released, but they are all released at some point. And as most current and former appellate law clerks can attest, last-minute requests to remand to the district court or the administrative agency, to approve settlements, or to otherwise dispose of the appeal in some manner not affecting the merits are hardly unusual in the 24-48 hours after the panel's composition is made public. From my own experience on the Ninth, we would see such requests all the time in immigration cases...

For litigants in a position where individual cases are less important than systematic legal rules, e.g., the government, groups like the Sierra Club in environmental cases, etc., there is an obvious advantage in preventing "bad" panels on the courts of appeals from reaching the merits when another case might allow a "better" panel to decide the same legal question. But should such blatant "judge-shopping" be tolerated? If not, what can be done about it?

For sure, these are two very distinct questions.

I don't want to dwell too long here on the first question, because I imagine there are fairly divergent views out there (and hope readers will use the Comments to share their own thoughts). My own view, though, is that panel-shopping dangerously undermines the randomness of appellate panels in the Courts of Appeals. What makes the circuits great is that different panels on the same court can answer the same question in two (or dare I say, six) different ways.

Moreover, panel-shopping would give institutional litigants, no matter which side they're on, a huge advantage over non-institutional litigants, e.g., petitioners in immigraton cases; prisoners in habeas cases; etc. By allowing those litigants to seek out panels likely to be receptive to their position, panel-shopping would only serve to distort the law within individual circuits, and, quite possibly, to force circuits to take more cases en banc where particularly unrepresentative panels are consistently deciding specific legal issues in a manner inconsistent with a majority of the circuit.

The harder question, it seems to me, is whether anything can be done to alleviate the "problem." Changing the timing of the release of the panel's identity doesn't strike me as a solution, because the panel would still become public at _some_ point, and it's at that point that the panel-shopping concerns would become manifest.  I also agree with Howard, who argues in his law.com column that advance disclosure is preferable to day-of notification.

An alternative possibility would be a new Federal Rule of Appellate Procedure, which would require judicial approval of any attempt to do away with an appeal after the identity of the panel is released (such approval is already required, but there's no standard that governs, and as Padilla demonstrates, it's often the case that the result is compelled when one party moots the appeal). The pressure on appellate judges to reduce their overbearing caseload where possible might well undermine that idea, unless the rule barred such voluntary mooting absent a change in the underlying facts, and even then imposed a strong presumption against dismissing the appeal.

I'm not sure that would work, either, but it's at least a starting point... As I preach to my Civil Procedure class, it's often more important for the Rules to protect the proverbial little guy, and this is another such example.