United States v. Rodriguez
753 F.3d 1206
| 11th Cir. | 2014Background
- Chief Judge issued General Order No. 41 (Dec. 30, 2013) certifying an "emergency" under 28 U.S.C. § 46(b) to allow three-judge panels that need not have a majority of judges from the circuit.
- The circuit is authorized 12 active judges but had only eight in active service at the relevant times, producing multiple long-standing vacancies.
- The circuit also has a heavy caseload per judge, exacerbating operational strain.
- Appellant challenged the validity of General Order No. 41 for the first time in a petition for rehearing; the panel had been composed under the Order and appellant was informed of panel composition before argument.
- The panel took judicial notice of the circuit’s vacancy and caseload facts and addressed the issue despite deeming the challenge waived because of untimeliness.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Chief Judge’s General Order No. 41 validly declared an "emergency" under 28 U.S.C. § 46(b) to permit panels lacking a majority of circuit judges | The Order is invalid; the panel did not meet § 46(b)’s majority-of-circuit requirement | The Order validly invoked § 46(b)’s emergency exception given long-term vacancies and heavy caseload | The Order validly declared an emergency contemplated by § 46(b); extended vacancies plus heavy caseload qualify as an emergency |
| Whether the appellant’s challenge to panel composition was timely | Challenge is timely or jurisdictional and should be entertained | Challenge waived because raised first in rehearing after notice before argument | Court held challenge waived for untimeliness but addressed the merits alternatively |
| How to read the two "unless" clauses in § 46(b) (do they excuse the three-judge panel requirement or only the majority-from-circuit requirement?) | The "unless" clauses exempt the three-judge-panel requirement entirely | The "unless" clauses exempt only the requirement that a majority be judges of the circuit | Court held the "unless" clauses provide an exception to the majority-from-circuit requirement (not the three-judge composition) |
| Whether courts may judicially notice circuit-wide facts (vacancies, caseload) for this analysis | Judicial notice improper for contested facts | Judicial notice appropriate for well-known, readily verifiable facts | Court took judicial notice under Fed. R. Evid. 201 and relied on undisputed, generally known facts |
Key Cases Cited
- Whitehall Tenants Corporation v. Whitehall Realty Co., 136 F.3d 230 (2d Cir. 1998) (interpreting the scope of § 46(b)’s "unless" clauses regarding panel composition)
- Evans v. Stephens, 387 F.3d 1220 (11th Cir. 2004) (timeliness of challenges to court composition; motion made before argument deemed timely)