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On the Horizon: More Powers for Some Federal Judges?
Special to Law.com
October 08, 2007
Howard J. Bashman
Related: Bashman Archive
The U.S. Congress is in the midst of considering a proposed piece of legislation known as the Court Security Improvement Act of 2007. The act consists of five titles, the first four of which actually pertain to improving court security. The fifth and final title of the act, however, consists of "Miscellaneous Provisions," and here's where things begin to get interesting.
For example, Section 505 of the act would officially reduce the number of active judges authorized to serve on the D.C. Circuit from 12 to 11. In exchange, one active judgeship would be added to the 9th Circuit, increasing the number of active judges on the nation's largest federal appellate court to 29.
For appellate court watchers like myself, the most interesting and potentially controversial portion of the proposed legislation is found in Section 503. That aspect of the act would amend federal law to provide that "a judge who has retired from regular active service under section 371(b) of this title, when designated and assigned to the court to which such judge was appointed, shall have all the powers of a judge of that court, including participation in appointment of court officers and magistrate judges, rulemaking, governance, and administrative matters."
Although it is commonplace for judges who have retired from regular active service to continue to work as semi-retired senior judges on the very same court to which they were originally appointed, Section 503, if it were to become law, would create immediate uncertainty concerning senior judges' ability to vote on whether to rehear cases en banc. Under current law, only federal appellate judges in regular active service have that important power, which is the only method by which a federal appellate court may overturn its own precedent in the absence of any change from the governing court of last resort.
Under current law, if a senior judge was on the original three-judge panel that decided the case that is to be reheard en banc, the senior judge may participate in deciding the case on rehearing even though only active judges were entitled to vote on whether to grant rehearing. However, if Section 503 becomes law, there would be an additional uncertainty as to whether senior judges can participate in deciding on the merits the cases in which en banc review had been granted, even if they were not on the original three-judge panel that had originally decided the case.
As a policy matter, I have not heard much dissatisfaction expressed over the current process, which gives only those federal appellate judges who are in regular active service a vote on whether to take a case en banc, and which guarantees to only the active judges participation in all en banc decisions. It is possible, however, that a major reason why federal appellate judges choose to remain in regular active service, even after satisfying the tenure-based criteria for retiring on senior status, is that those judges do not want to lose out on their ability to vote on en banc matters.
I can see arguments both for and against giving semi-retired federal appellate judges the ability to vote on whether to take cases en banc and on how to resolve en banc cases on the merits. It's unfortunate that a provision that may accomplish this result is hidden within legislation that is supposedly devoted to security for judges, causing the provision to escape adequate scrutiny.
It would be easy enough to amend Section 503 to clarify that the act is not intended to alter the current law on federal appellate judges' powers to decide whether to take a case en banc and to resolve en banc cases on their merits. Such an amendment should occur before the Court Security Improvement Act of 2007 becomes law, to ensure that the current procedures continue to govern.
Howard J. Bashman operates his own appellate litigation boutique in Willow Grove, Pa., a suburb of Philadelphia. He can be reached via e-mail at hjb@hjbashman.com. You can access his appellate Web log at http://howappealing.law.com/.
