United States v. Rodriguez, No. 12-14629, from SDFla
Per curiam opinion joined by Senior Circuit Judge Anderson, Senior District Judge Schlesinger (MDFla), and Senior District Judge Moody
Summary: The original panel opinion was unpublished, but this published opinion addressed an issue raised by the appellant in a petition for rehearing. The appellant-defendant challenged Eleventh Circuit General Order No. 41 entered by Chief Judge Carnes on December 30, 2013, which declared a judicial emergency pursuant to 28 U.S.C. § 46(b) because of continuing judicial vacancies in the Eleventh Circuit and permitted decisions to be rendered by panels which did not contain a majority of judges of the Eleventh Circuit. Specifically, the appellant-defendant argued that the vacancies existing on the Eleventh Circuit were not an emergency for purposes of the statute.
The panel held that the defendant had waived this challenge because he was informed of the composition of the panel two weeks before oral argument. However, the panel alternatively concluded that the emergency caused by four long-standing vacancies on a twelve-judge court—which has a heavy caseload per judge even with a full complement of judges—was an emergency contemplated by the statute. In support, the panel cited two orders from the Fifth Circuit declaring judicial emergencies in light of two and three vacancies and a heavy caseload per judge.
Note: I previously noted other published opinions from panels that consisted of no active Eleventh Circuit judges (i.e. a senior Eleventh Circuit judge plus two visiting judges). However, this opinion may be unique in that it is composed of zero active judges from any court. It is also noteworthy that there are more Middle District of Florida than Eleventh Circuit judges on this panel! Perhaps the caption should read the United States Court of Appeals for the Middle District of Florida?
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