Unanimous 5-Judge U.S. Circuit Court Opinion

No, it's not an en banc; what is it?

|The Volokh Conspiracy |

From U.S. v. Alcantara (2d Cir. 2005):

Before: WALKER, Chief Judge, CARDAMONE, WINTER, STRAUB, and LAY,[*] Circuit Judges.

[*] The Honorable Donald P. Lay, Senior Circuit Judge, United States Court of Appeals for the Eighth Circuit, sitting by designation.

Five judges? How did that happen? Federal courts of appeal generally sit in three-judge panels; sometimes only two judges are listed, for instance if one of the judges couldn't participate; some opinions are one-judge decisions on certain motions; and of course there are en bancs that generally include all the judges in the circuit (except in the Ninth Circuit, where those generally have only 11 of the judges), but this isn't an en banc.

Post your answer in the comments, without peeking at the opinion. Or, if you just want to learn the answer for yourself, see here and here. I imagine this must have happened before, but it's the first time I've seen it.

NEXT: The Return of the "Faithless Elector"

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  1. Some sort of miscommunication, where all five were assigned (or thought they were) to the case, and when they all showed up at court, they said, “What the hell? Let’s all hear the case. Can we get two more chairs in here, please?”

  2. I’m pretty sure the Federal Circuit has done this a few times in patent cases.

  3. Kinzenbaw v. Deere & Company, 741 F.2d 383 (Fed. Cir. 1984) (“Before MARKEY, Chief Judge, and FRIEDMAN, RICH, DAVIS and BALDWIN, Circuit Judges”).

  4. Federal Circuit does this sometimes for single cases, for reasons that remain… opaque. https://www.ipwatchdog.com/2010/03/26/pressure-products-v-greatbatch-why-another-5-judge-panel/id=9835/

  5. “One, two…five!”

    1. Three, sir!

  6. Silly judges, don’t they know five is right out?

  7. While every Federal judge is generally intelligent and backed up with similarly talented law clerks, the Federal Circuit is constituted of judges from disparate legal backgrounds that reflect the varying jurisdiction which that court exercises; some judges are tax law experts, some judges are patent law experts, etc. As such, the Federal Circuit may find it advantageous to occasionally have a larger panel to ensure that, say, in a particular patent appeal, there are sufficient patent practitioners on the panel.

    This case, though, is from the 2nd Circuit. While I suppose this could be the same situation as the Federal Circuit’s usage, given that the style of the case indicates this is most likely criminal in nature, my best guess would be a consolidated opinion of multiple panels where the same issue is raised before each panel and where there are one or more judges in common between panels.

  8. Two different panels — Straub is the common link. The issue before each panel was that the District Court Judge (now deceased) was regularly holding conferences, pleas and sentencings in her robing room. I know this because I am a former AUSA and I litigated the only proceeding in the two cases — Munoz’s safety valve evidentiary hearing — which was held in an open courtroom. Thankfully, it was my only involvement in those cases.

    1. lawyer516….a potential teachable moment. Two questions.

      Why is this significant? = The issue before each panel was that the District Court Judge (now deceased) was regularly holding conferences, pleas and sentencings in her robing room.

      Why? = Thankfully, it was my only involvement in those cases.

  9. For the same reason that Nigel Tufnel’s amplifier goes all the way to eleven.

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