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, as an unfortunate result of our offices being close together.]

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

  1. Ann Bartow says:

    This is completely awesome pedantic weeniedom, and I mean that in the best possble way.

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  4. Joe says:

    The Nyugen case concerned “the question whether a panel of the Court of Appeals consisting of two Article III judges and one Article IV judge had the authority to decide petitioners’ appeals.”

    The analysis did not rely on the issue, but the fact the panel had a non-Art. III judge seems notable. I guess the different facts here might not save the day, but it does seem like a somewhat different situation on that ground.

    But, I do second the first comment.

  5. lyle says:

    Given that a Justice can sit by designation in a Circuit; what’s to stop Justice Robert’s from doing exactly that?

  6. michael says:

    There’s nothing to stop Justice Roberts sitting as part of a (new) DC Circuit panel, even without a special designation, since he’s the circuit Justice. That follows from the statute. The point — and, yes, it is very formalistic — is that during the gap period Roberts had left the DC Cir. From the circuit’s point it is as if he had resigned. Indeed, he did resign. When he comes back in his new role, it’s not at all obvious he “snaps back” to where he was. In a world of formalism, and maybe in any rule of law world, it needs the right paperwork.

    While I agree the problem isn’t as serious as the non-Article III judge in Nyugen, the point is that it wasn’t entirely obvious why that case was serious either, at least in cases (like this one) where the other two judges agreed with the outcome anyway. (The reason was that the debate might be tainted, and we assume there is some purpose to Roberts’s re-joining the panel, that argument could be invoked here.)

    If it were up to me, I’d say that the ‘de facto officer’ doctrine could be invoked here…but the Nyugen court suggests pretty strongly that this shouldn’t be used when the fault is a statutorily based one involving judges. Or, I’d invoke CFTC v. Schor, and say the problem here is de minimus, and since the decisions were by article III judges at all times, no harm no foul. The case for that proposition is certainly stronger here than in Nyugen, as there were no non-Art. III judges involved, and we can presume that nothing happened during the gap.

    But the point of our piece wasn’t seriously to argue that Banner should be voided; rather it was a playful observation that the (over) formalism of earlier cases, notably Nyugen, creates an opening for such claims, and that indeed such a claim could be far from frivolous. To which I would add, In such an environment, why not dot the i’s and cross the t’s, and make sure that the Chief’s re-appointment to a panel in progress is done in an air-tight manner? To fail to do so is to suggest that, as Steve put it at Prawfsblawg, “the Chief Justice [might] be able to place himself on any circuit panel on which there is a vacancy?” And that can’t be right. But if he can parachute back into Banner without an order from the DC Circuit or at least its Chief Judge, why not?

  7. David Krinsky says:

    I think the answer to the question–whether Banner can be reopened–is simply “no”.

    28 U.S.C. 46(d) states that a quorum of a three-judge panel is two judges. Even if Chief Justice Roberts was not appropriately on the panel, Judges Rogers and Edwards were entitled to decide the case alone. See In re Gibbs, 223 F.3d 308 (5th Cir. 2000) (two-judge quorum for unspecified reason); United States v. Gacnik, 50 F.3d 848 (10th Cir. 1995) (panel member died after oral argument); Norfolk & W. Ry. Co. v. Roberson, 918 F.2d 1144 (4th Cir. 1990) (panel member recused after oral argument). The problem in Nguyen–not present here–is that the original panel was not appropriately constituted.

    It’s a great thought experiment, though, nevertheless.

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  10. Eh Nonymous says:

    I’d agree with David K. The panel was properly constituted; so long as the (properly constituted) members who participated in the oral argument were still Article III judges at the time they subsequently voted/ came to a decision, I don’t see why the decision can’t issue “after the fact.”

    If the judge votes to join a majority opinion, and while it’s being drafted, s/he drops dead, that doesn’t undo the vote, does it? The opinion can issue after they are no longer present, because the last act necessary for the opinion to issue has been completed, right?

    There’s no rule that you still have to be touching third base at the moment the opinion issues, is there? Or, not when it comes out in slip form, but when it’s available on ECF? Or when the Supreme Court reverses it? 🙂

    Nice thought problem, but I think not a real problem.

  11. David E.B. Smith says:

    As long as we’re engaging in pedantic weeniedom, shouldn’t it be pointed out that it’s not exactly correct to say that Nguyen “forced the Supreme Court to vacate a whole slew of criminal convictions affirmed by an ‘improperly constituted’ Ninth Circuit panel”, when it was not the criminal convictions that were vacated, but the judgments of the Ninth Circuit affirming the convictions, with the cases remanded “for fresh consideration of petitioners’ appeals by a properly constituted panel organized ‘comformably to the requirements of the statute.'”?

    (And the last I can find of Nguyen is a later unpublished 9th Circuit order vacating in part, affirming in part, and remanding for resentencing).


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