Extended Vacancies, Crushing Caseloads, and Emergency Panels in the Federal Courts Of Appeals

I. 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. II. 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. …