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The Two-Judge Appellate Panel

Last week I blogged about an en banc opinion from the Fourth Circuit for which authorship of the majority opinion was attributed to two judges.  (See here) This week from the Fourth Circuit came another two judge oddity-a panel opinion in which the panel consisted of only two judges.

28 U.S.C.  § 46 governs the makeup of Circuit Court panels, and directs in subsection b that each circuit “may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges…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.” Subsection d of the statute allows that a majority of the number of judges authorized to constitute a panel of the court “shall constitute a quorum.”

In Hupp v. Cook, the Court had to invoke 28 U.S.C. § 46(d) as it heard the appeal of the grant of summary judgment to law enforcement officers on the basis of qualified immunity.  The panel assigned the case was supposed to consist of Chief Judge Gregory, Judge King, and Judge Thacker.  However, as noted in a footnote on the first page of the opinion, “Judge Thacker was unable to participate in oral argument.”  Thus, the panel consisted of only Chief Judge Gregory and Judge King.  This panel of two also heard two other oral arguments that day in addition to Hupp, and, in another break from the norm, these arguments did not take place in the Fourth Circuit’s courthouse in Richmond, VA, but rather at Washington and Lee University School of Law as allowed by Local Rule 34(c).

For anyone wondering about the substantive result of the case, the two-judge panel reversed the district court’s grant of qualified immunity; if you’ve been following my recent posts (here and here) you will know that the Court’s rejection of qualified immunity arguments from law enforcement defendants in its published opinions seems to be increasingly common.

–Patrick Kane

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3 Responses to "The Two-Judge Appellate Panel"

  • Beth Scherer
    July 30, 2019 - 10:46 am Reply

    Curious that Judge Thacker did not participate in the case by reviewing the oral argument recordings. That is what the U.S. Supreme Court does when a justice cannot attend oral argument–most recently, Justice Ginsberg. Perhaps no recording or transcript was available because oral argument was held at Washington & Lee?

    • Patrick Kane
      July 30, 2019 - 10:55 am Reply

      The audio is available, I listened to the beginning of the session to see if there was any explanation for her absence and heard none. Perhaps there was an unforseen conflict of interest issue and because of the remote location of the arguments they couldn’t modify the panels when it was discovered? I didn’t listen to the following two arguments to see if she perhaps came onto the bench for those.

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