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Thursday, October 25, 2007

Can District Judges Sit on Other Circuits?

It is well established that district judges may sit by designation on the circuit court in which they keep their chambers. As provided by 28 U.S.C. § 292(a),

The chief judge of a circuit may designate and assign one or more district judges within the circuit to sit upon the court of appeals or a division thereof whenever the business of that court so requires. Such designations or assignments shall be in conformity with the rules or orders of the court of appeals of the circuit.

But in an Eleventh Circuit decision issued yesterday (hat tip: How Appealing), the panel includes the Honorable Tom Stagg, U.S. District Judge for the Western District of Louisiana, sitting by designation.

To be fair, 28 U.S.C. 292(d) does provide for the service of a district judge on another circuit, but only in extremely limited circumstances:

The Chief Justice of the United States may designate and assign temporarily a district judge of one circuit for service in another circuit, either in a district court or court of appeals, upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises.

At the risk of asking a silly question, has the Chief Judge of the Eleventh Circuit presented such a certificate of necessity to Chief Justice Roberts? Was Judge Stagg assigned by the Chief Justice? Is the Eleventh Circuit short for sitting judges? If so, then this is much ado about nothing. If not, then I think there is a serious problem... it may seem hypertechnical, but the Supreme Court invalidated decisions by a Ninth Circuit panel constituted in violation of  § 292 just four years ago in Nguyen v. United States, even though there was no argument below that the panel was unlawfully constituted, and even though the error was arguably harmless.

Just a fun meditation for an otherwise gray D.C. Thursday...

Posted by Steve Vladeck on October 25, 2007 at 11:06 AM in Constitutional thoughts, Current Affairs, Steve Vladeck | Permalink


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I just discovered that (11th Circuit) Middle District of Florida Judge Antoon II had signed a dismissal order in 2009 for my civil case involving fraudulent evidence as done by the Walt Disney Company. As recorded, Judge Antoon II had signed it February 2009. --- Then years later, in 2017, when Disney forced the case to be heard in California, Judge Antoon II was then incredibly designated to sit in on this same case in the Ninth Circuit court of appeals in California. --- Thus Judge Antoon II had sat and ruled/signed on the same case TWICE - once in 2009 in Florida and then again in 2017 in California. ----- Isn't this highly corrupt and unethical? ---- (BTW: Judge Antoon II then ruled in favor of the Walt Disney Company in 2017 and blocked the En Banc that was filed.) -----------

Posted by: Royce Mathew | Dec 28, 2018 5:25:14 AM

For more info and see the video of 2017 ---- I welcome all emails - / communications. --- see Royce Mathew v. The Walt Disney Co. 15-56726 on Youtube -- https://www.youtube.com/watch?v=GXuAwPt_-qE

Posted by: Royce Mathew | Aug 14, 2018 10:30:32 AM

In Florida middle District court, Judge Dalton threw my case out of the court without giving me nor my lawyer any communications or seeing us. -- Then when we refiled the case in NY, the court forced the case be transferred without comment to California, Los Angeles. --- Then after being ruled against, I appealed in the Ninth Circuit in Pasadena California. --- AND - incredibly, they flew in Judge Antoon II from the same middle District court as Judge Dalton, and he sat on my appeal case - and he ruled against me, and then blocked my En Banc filing. ---- I welcome all emails - / communications.

Posted by: Royce Mathew | Aug 14, 2018 10:27:54 AM

Another wrinkle:

It's also routine these days for district judges to sit by designation on the U.S. Court of Appeals for the Federal Circuit.

I don't know for sure, but strongly suspect the various circuits' chief judges and the Chief Justice are fulfilling the requirements of 292(d).

Posted by: Anon | Oct 27, 2007 10:12:21 AM

This is an interesting question, especially because I agree with "Well" that such visits are fairly common practice, and not just by Judge Shadur. I have no idea whether those statutorily prescribed formalities get observed or not.

A different question: *should* it be allowed, encouraged, discouraged? On the one hand, doesn't it help with cross-fertilization of ideas and approaches, and also offer relief for especially overburdened courts? On the other hand, is there a policy problem if judges who were appointed (and confirmed) with certain expectations about the geographical scope of their influence then sit on other cases?

I am inclined to think the good outweighs the bad, but I don't really know...

Posted by: William McGeveran | Oct 26, 2007 3:18:44 PM

Given the Eleventh Circuit's caseload and the fact that they have visiting judges all the time, I think they must have certified whatever the judicial equivalent of a state of emergency is. It seems they have decided to use visiting judges rather than ask for more judgeships. As an aside, one case I'm aware of is that Eastern District of Missouri Senior Judge John Nangle has retired to Savannah and sits with the Eleventh quite frequently. He even sits as a visiting district judge there sometimes.

Posted by: Milbarge | Oct 25, 2007 11:49:22 PM

I think it's likely that Roberts routinely signs orders approving this sort of thing. For an example, check out fn. 4 of Leary v. U.S., 268 F.2d 623 (9th Cir. 1959).

Posted by: Well | Oct 25, 2007 3:10:20 PM

I know nothing about the statutes, but I know this is far from uncommon. Judge Shadur (N.D.Ill), for example, has sat on close to a majority of the CAs.

Posted by: Well | Oct 25, 2007 3:03:56 PM

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