This petition for rehearing merits a brief opinion because it raises rarely litigated issues concerning the validity of a decision rendered by two judges of a panel after a third judge has recused himself. Though it is settled that a panel from which one judge has recused may render a decision, see 28 U.S.C. § 46(d); 2d Cir. R. § 0.14(b); Murray v. National Broadcasting Co.,
The panel to which this appeal was originally assigned consisted of Judge Alti-mari, Judge Calabresi, and myself. Judge Altimari, who was necessarily absent from the courtroom during oral argument, later heard a tape-recording of the oral argument. Judge Calabresi and I attended the argument and questioned counsel. After the argument, Judge Calabresi recused himself, upon realizing that one of the parties is the father of a close friend of the Judge’s wife.
Courts of appeals may hear and determine cases and controversies by panels consisting of three judges. 28 U.S.C. § 46(b), (c). The authority of a two-judge panel to adjudicate a matter in the absence of a third judge originally designated to serve with the panel is established by 28 U.S.C. § 46(d), which provides that “[a] majority of the number of judges authorized to constitute a court or panel thereof, as provided in paragraph (e),. shall constitute a quorum.”
1. Judge’s participation in questioning prior to recusal.
Appellants contend that the judgment rendered by the two-judge panel, after Judge Calabresi’s recusal, is invalid because he participated in questioning during oral argument, prior to his recusal. Though two-judge panels have often decided appeals after one of the judges hearing argument has recused, see, e.g., Tagatz V. Marquette University,
A recused judge’s participation in questioning during oral argument does not constitute the sort of participation in the delibera
Moreover, though a judge must recuse when his impartiality “might reasonably be questioned,” 28 U.S.C. § 455(a), whether or not he is aware of the circumstances giving rise to the basis for such reasonable questioning, see Liljeberg v. Health Services Acquisition Corp.,
2. Judge’s absence from oral argument when serving as member of two-judge panel.
Appellants also contend that the judgment rendered by the two-judge panel, after Judge Calabresi’s recusal, is invalid because one member of that panel was unavoidably absent from the oral argument and gained the benefit of the argument by hearing a tape-recording of it. In appellants’ view, the two-judge quorum requirement specified by statute, see 28 U.S.C. § 46(d), and local rule, 2d Cir. R. § 0.14(a), is violated when one of the two judges is absent from the oral argument. Again, we disagree. .
Though our Court provides oral argument unless the panel elects not to have it, after affording the parties an opportunity to show why argument is needed, see 2d Cir. R. 34, a judge’s absence from the bench is not the denial of oral argument. Oral arguments in this Court are tape-recorded, and judges absent from án argument listen to the taped recording. The judge hearing the tape has received all the benefit of counsel’s advocacy. The judge’s absence, at most, deprives the lawyers of the “opportunity” to have the judge ask them questions, surely not a protected right.
The petition for rehearing, and a previously filed motion to vacate the summary order, are denied.
Notes
. Footnote * of this Court’s summary order reports that after oral argument Judge Calabresi "withdrew” from the panel. Because his withdrawal resulted from recusal, as noted above, we need not consider appellants’ contention that a judge’s withdrawal from a panel for reasons other than recusal, illness, disability, or death would preclude the remaining two judges from adjudicating an appeal.
. Judges who participated in a panel decision remain eligible to consider a petition for rehearing. Edwards v. United States,
. Also arguably relevant is subsection 46(b), which provides:
In each circuit the court may authorize the hearing and determination of cases and controversies by separate 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....
There is some uncertainty whether the first "unless” clause permits an exception to the requirement that each panel consist of three judges, or to the requirement that a majority of the three-judge panel must be "judges of that court,” either active or senior judges, see In re Bongiorno,
In at least one Circuit, the view has been expressed that the second "unless” clause modifies the requirement that a majority of the panel must be judges "of that court.” See Charles Clark, Chief Judge’s Order Declaring an Emergency Under 28, U.S.C. § 46(b) (1991), 28 U.S.C.A. § 46, Historical and Statutory Notes (West 1993).
. Appellants maintain in their rehearing petition that since, in their view, this Court’s Summary Order "is void ab initio," Petition for Rehearing at 4 n.2, the issues that they believe concern the substantive correctness of the Order "are not appropriately addressed at this time,” id. This attempt to bifurcate a petition for rehearing is unavailing. Just as an appellant seeking reversal both for lack of district court jurisdiction and for substantive error is obliged to present all arguments within the applicable time limits, so a petitioner for rehearing must present all available contentions within the time provided for such a petition.
. We need not rely upon the additional circumstance that, even if Judge Calabresi had participated in the deliberation and decision of this appeal, his vote would not have been decisive. Cf. Aetna Life Insurance Co. v. Lavoie,