Extended vacancies, crushing caseloads, and emergency panels in the federal courts of appeals.

• Author: Adler, Andrew L.

1. INTRODUCTION

   At the end of 2013, the chief judge of the Eleventh Circuit declared a state of emergency, exempting the court from the requirement in 28 U.S.C. [section]46(b) that each of its panels include a majority of Eleventh Circuit judges. * (1) As would later become clear, the emergency arose from multiple vacancies on the court, which exacerbated the effect of its heavy per-judge caseload. Throughout 2014, emergency panels consisting of one Eleventh Circuit judge and two visiting judges resolved over one hundred appeals.

   In a petition for rehearing filed in one such case, an unsuccessful appellant challenged the validity of the emergency panel. (2) Rather than resolving the petition summarily, the emergency panel instead published a precedential opinion upholding the certified emergency. (3) Although other circuits have certified section 46(b) emergencies based on the vacancy-caseload combination, the Eleventh Circuit's opinion is the first federal appellate decision addressing a challenge to such an emergency. Because extended vacancies and heavy caseloads are likely to persist, that opinion invites new scrutiny of the emergency exception to section 46(b)'s majority requirement. This article begins that undertaking.

   Part II provides the broader context for discussion and analysis of this important issue. It summarizes the heavy, vacancy-exacerbated caseloads facing the federal courts of appeals, and their use of visiting judges as one tool to help manage those caseloads. It details the limitations that Congress has placed on the use of visiting judges, focusing on section 46(b)'s requirement that a majority of the panel be drawn from the presiding court, as well as the statutory exceptions to that requirement. And it briefly recounts prior instances in which circuits have invoked the statute's emergency exception based on extended vacancies and heavy caseloads.

   Part III summarizes the dismal conditions in the Eleventh Circuit--four vacancies out of twelve authorized judgeships and the highest per-judge caseload of all the circuits--that understandably led it to declare an emergency in General Order 41. It then summarizes General Order 41, the emergency panels operating under it, Rodriguez's challenge to the validity of one such panel, and the Rodriguez opinion.

   Part IV analyzes the central statutory issue--namely, whether multiple vacancies and a heavy caseload may constitute an emergency within the meaning of section 46(b)'s exception--and concludes that the statutory issue is more complicated than suggested by the sparse analytical treatment it has received thus far.

   Part V concludes the article by defending the courts' broad interpretation of section 46(b)'s emergency exception. It nonetheless summarizes the concerns about the use of visiting judges and recasts the balance that Congress must ultimately maintain between difficult competing considerations. It predicts that, in this era of extended vacancies and heavy caseloads, the federal courts of appeals, now armed with a tested precedent in Rodriguez, are likely to continue certifying section 46(b) emergencies. It therefore recommends that this practice receive additional scrutiny in the context of the vacancy and caseload crises facing the federal courts of appeals.

2. THE BROADER CONTEXT

   The federal courts of appeals have long faced a "crisis in volume." (4) Annual filings per circuit judge have mushroomed over the last sixty years--from seventy-three in 1950, to seventy-seven in 1964, to 137 in 1978, to 194 in 1984, to 237 in 1990, to 300 in 1997, to nearly 370 in 2008, and then approximately 330 in 2013. (5) "Strikingly, per-judge filings have more than quadrupled even as the number of regional courts of appeals judges has more than doubled--from 75 in 1950 ... to 167 in 2010." (6) "This surge has been attributed largely to a flurry of congressional activity in the 1960s, which led to new federal rights and mechanisms for obtaining them." (7)

   Extended judicial vacancies exacerbate the crisis of volume, and such vacancies have become commonplace in recent years. (8) For example, in the first five years of the Obama administration, the average time between vacancy and nomination for circuit judges was 310 days, and the average time between nomination and confirmation was 253 days. (9) In the most extreme cases, some circuit vacancies, including the D.C. Circuit seat that became vacant upon John G. Roberts's elevation to Chief Justice, (10) have lasted for over eight years. (11) For every vacant seat, there is a stack of appeals that must be redistributed to judges who have already been confirmed; (12) and the longer the vacancy, the higher the stack. This increase in per-judge caseload predictably leads to delays, backlogs, and even sub-optimal work product. The administration of appellate justice suffers. (13)

   To ameliorate their heavy caseload, courts of appeals have employed controversial case-management techniques that include, for instance, granting oral argument in fewer cases, publishing fewer precedential opinions, and delegating increased responsibility to law clerks and staff attorneys. "Despite these innovations, the regional courts of appeals continue to operate under stress because filings have, for the most part, continued to rise." (15) And the stress persists despite the commendable contribution of senior judges, who have "little or no financial incentive" to "continue working well after they have reached the retirement age of most Americans." (16) While some "have called for changes to the courts' constraints--an increase in the numbers of judges or a decrease in the number of cases," neither proposal "has gained political traction in the decades since they were first proposed." (17)

   It is therefore unsurprising that federal courts of appeals have also taken advantage of one option that Congress has long afforded them: visiting judges. (18) To manage their heavy caseloads, (19) many federal courts of appeals regularly use visiting judges from other Article III courts, who temporarily sit by designation. (20) Each year from 1997 to 2013, at least 300--and sometimes more than 400--different visiting judges have annually participated in approximately 3,700 to 5,400 appeals terminated on the merits, representing from approximately four to almost seven percent of all such appeals. (21) While this practice is not without potential inefficiencies, (22) visiting judges help relieve the pressure created by heavy caseloads. It has been reported, for example, that the consequences for one busy appellate court would have been "catastrophic were designated judges not available to sit," and one circuit judge has remarked that his court "could not have functioned without" visiting district judges. (23)

   Nonetheless, visiting judges are not a panacea, and Congress has prescribed procedures and standards that must be followed before visiting judges may be designated to sit temporarily on the federal courts of appeals. These procedures and standards vary based on the status of the visiting judge, reflecting the fact that Congress has carefully considered the use of visiting judges and does not regard federal judges as fully fungible. (24) First, the Chief Justice may, "in the public interest," designate out-of-circuit circuit judges "upon request by the chief judge or circuit justice" for that circuit. (25) Second, the Chief Judge of the circuit may designate in-circuit district judges "whenever the business of that court so requires." (26) And, third, the Chief Justice may designate out-of-circuit district judges "upon presentation of a certification of necessity by the chief judge or circuit justice of the circuit wherein the need arises." (27) While, in practice, these procedures and standards do not pose substantial obstacles, they reflect Congress's unwillingness to allow the unfettered use of visiting judges.

   That unwillingness is most evident in a critical limitation in the Federal Courts Improvement Act of 1982. (28) The accompanying Senate Report observed that, under then-current law, "a three-judge appellate panel may be composed of any combination of active, senior, designated, or district court federal judges." (29) As a result, it was not "infrequent that there [would] be only one circuit judge on a panel or that the presiding judge [would] be a senior judge or a judge from another circuit." (30) Congress believed that "such situations [would] lead to doctrinal instability and unpredictability in the law of the circuit because district court and court of appeals judges from outside the circuit may not know or may not feel bound by the law of that circuit." (31) Congress therefore drew the line at one visiting judge per panel, revising section 46(b) to require that panels consist of "three judges, at least a majority of whom shall be judges of that court." (32) Congress believed that, as visiting judges became more frequently utilized, (33) this majority requirement would "discourage[] any unnecessary borrowing of judges" (34) and "provide greater stability and predictability in the law being applied in any given area of the country." (35) In short, section 46(b), as amended, reflects a strong Congressional preference that appellate panels be composed of at least two judges of the presiding court.

   Significantly, however, Congress also codified exceptions in two "unless" clauses. Specifically, section 46(b) provides that appeals may be resolved by

   panels, each consisting of three judges, at least a majority of whom shall be judges of that court, unless such judges cannot sit because recused or disqualified, or unless the chief judge of that court certifies that there is an emergency including, but not limited to the unavailability of a judge of the court because of illness. (36) Thus, Congress included one exception for recusals or disqualifications, and one for emergencies. For present purposes, the key statutory issue...