Here's the 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. §46(b) that each of its panels include a majority of Eleventh Circuit judges. 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. Rather than resolving the petition summarily, the emergency panel instead published a precedential opinion upholding the certified emergency. 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.Adler defends Chief Judge Carnes's application of the emergency exception.
If you're interested in the Eleventh Circuit -- or in the federal courts of appeals in general -- do check out Adler's well written and thoroughly researched article.
2 comments:
Thank you for this post.
On May 7, 2012, US Circuit Judge Charles R. Wilson, US Eleventh Circuit, entered a one-judge order in case no. 12-11028-B, thereby acting as a panel of one.
https://www.scribd.com/doc/270261556/US-Judge-Charles-R-Wilson-US-Eleventh-Circuit-One-judge-Appellate-Order1
On July 16, 2012 US Circuit Judge Charles R. Wilson, US Eleventh Circuit, entered a one-judge order in case no. 12-11213-C, thereby acting as a panel of one.
https://www.scribd.com/doc/270261657/US-Judge-Charles-R-Wilson-US-Eleventh-Circuit-One-judge-Appellate-Order2
In each case, it appears Judge Wilson had a duty to recuse himself, in my opinion, and based on the holding in US v Bayless, "Notably, under § 455(a), recusal is not limited to cases of actual bias; rather, the statute requires that a judge recuse himself whenever an objective, informed observer could reasonably question the judge's impartiality, regardless of whether he is actually partial or biased."
Case no. 12-11028-B and case no. 12-11213-C each sued the Thirteenth Judicial Circuit, Florida, and several of its judges and court personnel for, inter alia, section 1983 civil rights violations, and violations of the Americans With Disabilities Act. The Thirteenth Judicial Circuit is headquarted in Tampa Florida, in the Edgecomb Courthouse 800 E. Twiggs Street Tampa, FL.
Tampa Florida is the duty station for Judge Wilson. Prior to service in the US Eleventh Circuit, Judge Charles R. Wilson was once part of the Thirteenth Judicial Circuit, Hillsborough County Florida in the following ways according to ballotpedia, including:
http://ballotpedia.org/Charles_Wilson_%28Florida%29
Assistant county attorney, Hillsborough County, FL, 1980-1981
Private practice, Tampa, FL, 1981-1986
State county judge, Hillsborough County, FL, 1986-1990
U.S. Attorney for the Middle District of Florida, 1994-1999
U.S. magistrate judge, Middle District of Florida, from 1990 to 1994
Because Tampa Florida is the duty station for Circuit Judge Charles R. Wilson, his disqualification was mandatory under 28 U.S.C. 455(a) because his impartiality might reasonably be questioned, over the professional, judicial and executive positions he once held in the Thirteenth Judicial Circuit, Hillsborough County Florida, and in the U.S. Middle District of Florida. Unfortunately Circuit Judge Charles R. Wilson did not disqualify himself in either case, 12-11213-C or 12-11028-B.
United States Court of Appeals, Second Circuit.
UNITED STATES of America, Appellee, v. Carol BAYLESS, Defendant-Appellant.
Docket No. 98-1580
Decided: January 18, 2000
http://caselaw.findlaw.com/us-2nd-circuit/1177419.html
A. Recusal
1. The statutory scheme.- Bayless's claim that Judge Baer should have recused himself rests on 28 U.S.C. § 455(a) (1994), which provides simply: "Any justice, judge, or magistrate of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned." Id. Notably, under § 455(a), recusal is not limited to cases of actual bias; rather, the statute requires that a judge recuse himself whenever an objective, informed observer could reasonably question the judge's impartiality, regardless of whether he is actually partial or biased. See Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 860, 108 S.Ct. 2194, 100 L.Ed.2d 855 (1988). Section 455(a) complements § 455(b), which addresses the problem of actual bias by mandating recusal in certain specific circumstances where partiality is presumed. See 28 U.S.C. § 455(b) (requiring recusal when, inter alia, a judge has "a personal bias or prejudice concerning a party").1
The 11th circuit's emergency is self-inflicted. Then Chief Judge Hatchet went to Congress asking for additional judge slots for the already-overworked circuit. His biggest foe was former Chief Judge Tjoflat who undercut all of Judge Hatchet's arguments.
Post a Comment