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Sitting by Designation

Last week, a recent federal appellate case was brought to my attention, not because of the substance of the decision or the underlying topic, but because of the make-up of the circuit panel that heard the case. The proceedings were brought up before a Ninth Circuit Court of Appeals panel that included a district court judge. That's nothing special; literally thousands of cases are heard every year by circuit court panels that contain a district judge "sitting by designation". What got my attention about this one was the district judge sitting by designation on this Ninth Circuit panel was a judge from Maryland!

This got me thinking about the "designation" process: How could a judge from Maryland end up on a Ninth Circuit panel? (Or, in other words, how could an East Coast judge end up on a West Coast panel?) I don't remember this being discussed in any of my Procedure or Federal Courts classes in law school, so I thought I'd check it out.

Turns out, intercircuit designations are not only possible, but relatively common. For example, for the 12-month period ending June 2011, there were over 200 intercircuit assignments.

The starting point is, as usual, the U.S. Code: section 292 of Title 28 to be exact. Section 292(d) states that "The Chief Justice of the United States may designate and assign temporarily a district judge of one circuit for service in another circuit, either in a district court or court of appeals, upon presentation of a certificate of necessity by the chief judge or circuit justice of the circuit wherein the need arises."

That seems straight forward enough. The chief judge of a circuit (or a Supreme Court Justice assigned to the circuit as "circuit justice" (see 28 U.S.C. § 42)) simply needs to present a "Certificate of Necessity" to the Chief Justice, who then makes the decision of whether, and presumably who, to designate. In reality, it's not exactly that straight forward.

According to Nicholle Stahl-Reisdorff's work, The Use of Visiting Judges in the Federal District Courts: A Guide for Judges & Court Personnel (published by the Federal Judicial Center in 2001, updated in 2006), a request for an intercircuit assignment must go through the Judicial Conference Committee on Intercircuit Assignments. "The Committee assists the Chief Justice in processing requests for intercircuit assignments by: (1) coordinating the proper documentation among the lending and borrowing courts’ chief judges, judges, and clerks; (2) recommending whether the Chief Justice should approve an assignment and preparing and forwarding the designation to the Chief Justice for signature; and (3) maintaining the records of and statistics for intercircuit assignments. The Committee further assists the Chief Justice by developing guidelines regarding the use of intercircuit assignments, maintaining rosters of judges willing to take intercircuit assignments, and recruiting judges willing to undertake such assignments." (See "Committee Answers Courts' Calls for Help," The Third Branch, Dec. 2010.)

Although Ms. Stahl-Reisdorff's manual is intended for judges and court personnel, it's a very interesting read that provides a rare yet fascinating glimpse behind the curtain of federal court administration. It should answer most questions one may have about intercircuit (and intracircuit) assignments. The only disappointing aspect of the guide, however, is it provides links to documents available through J-Net (Judiciary Net), which the general public does not have access to. Thankfully, a few of these documents (especially the form for a Certificate of Necessity) are included in the manual's appendices or described in detail.

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