Murray v. National Broadcasting Co., Inc., 1566
| Decision Date | 12 August 1994 |
| Docket Number | D,No. 1566,1566 |
| Citation | 35 F.3d 45 |
| Parties | Hwesu S. MURRAY, Plaintiff-Appellant, v. NATIONAL BROADCASTING COMPANY, INC. and Brandon Tartikoff, Defendants-Appellees. ocket 93-9335. . Petition for Rehearing |
| Court | U.S. Court of Appeals — Second Circuit |
Gregory L. Reid, Mt. Vernon, NY, for plaintiff-appellant.
Susan Buckley, James Sandnes, Cahill, Gordon & Reindel, New York City, for defendants-appellees.
Before: NEWMAN, Chief Judge, and LUMBARD, Circuit Judge. *
Appellant's petition for rehearing raises an institutional issue of court procedure that merits a brief opinion. The issue is whether a case may be validly adjudicated by a panel of two circuit judges under circumstances where one of the three judges originally assigned to hear the appeal recused himself immediately before oral argument. We conclude that the two-judge panel was authorized to proceed with the determination of the appeal. We therefore deny the petition for rehearing.
The appeal was originally assigned to a panel consisting of Judge Lumbard, Judge Oakes, and the writer. When the case was called for oral argument, Judge Oakes announced that he was recusing himself and left the bench. He has not participated in the adjudication of the appeal. Argument was held before the remaining two judges of the panel. The two-judge panel affirmed by summary order, invoking Rule Sec. 0.14(b) of the Local Rules of the Second Circuit. Murray v. NBC, 29 F.3d 621 (2d Cir.1994). Appellant's petition for rehearing includes the contention that disposition of the appeal by a two-judge panel violates both 28 U.S.C. Sec. 46(b) (1988) and Local Rule Sec. 0.14(b).
1. The statutory claim. 28 U.S.C. Sec. 46(b) provides:
In each circuit the court may authorize the hearing and determination of cases and controversies by separate panels, each consisting of three judges....
Though Congress enacted this provision to curtail the prior practice under which some circuits were routinely assigning some cases to two-judge panels, see S.Rep. No. 97-275, 97th Cong., 2d Sess. 9, reprinted in 1982 U.S.C.C.A.N. 11, 19, the legislative history makes clear that the statute was not intended to preclude disposition by a panel of two judges in the event that one member of a three-judge panel to which the appeal is assigned becomes unable to participate:
The circuit courts could continue to adopt local rules permitting the disposition of an appeal in situations in which one of the three judges dies or becomes disabled and the remaining two agree on the disposition; but, in the first instance, all cases would be assigned to [a] panel of at least three judges.
Id. (emphasis added). The fact that the Senate Report identifies death or disability does not preclude unavailability because of late-discovered disqualification. Moreover, the Report makes no distinction between unavailability occurring before and after oral argument, emphasizing only that the appeal must be assigned "in the first instance" to a panel of three judges. This understanding of subsection 46(b) is explicitly borne out by subsection 46(d), which provides that "[a] majority of the number of judges authorized to constitute a court or panel thereof, as provided in paragraph (c) [], shall constitute a quorum." 28 U.S.C. Sec. 46(d) (1988) (emphasis added).
Since the pending appeal was assigned to a panel of three judges "in the first instance," one of whom thereafter recused himself, we conclude that disposition by the remaining two judges did not violate section 46(c).
2. The local rule claim. Appellant's contention is more plausibly supported by reliance on Local Rule Sec. 0.14(b), which provides:
Unless directed otherwise, a panel of the court shall consist of three judges. If a judge of a panel of the court which has heard argument or taken under submission any appeal, petition or motion shall be unable to continue with the consideration of such matter by reason of death, illness, resignation, or incapacity, or shall be relieved of such consideration at the judge's request, the two remaining judges will determine the matter if they are in agreement and neither requests the designation of a third judge. If they are not in agreement or either requests such a designation, the Chief Judge will designate another circuit judge to sit in place of the judge who has become unable to continue or has been relieved.
2d Cir.R. Sec. 0.14(b) (emphasis added). Relying on the underscored words, appellant contends that since Judge Oakes recused himself prior to oral argument, Rule Sec. 0.14(b) does not permit disposition by a two-judge panel.
Though we acknowledge the force of the argument based on the literal wording of the local rule, we conclude, as the Supreme Court said in a somewhat similar context, that this is a situation where "any sacrifice of literalness for common sense does no violence" to the purpose of the rule. See Textile Mills Securities Corp. v. Commissioner of Internal Revenue, 314 U.S. 326, 334, 62 S.Ct. 272, 277-78, 86 L.Ed. 249 (1941). The rule is obviously intended to permit the Court to conduct its business expeditiously despite the unanticipated unavailability of one member of a three-judge panel. The literal terms of the rule would be satisfied had Judge Oakes sat through the oral argument and recused himself immediately thereafter. It makes no sense to apply the rule so mechanically as to require a different result where recusal occurs one-half hour earlier. Indeed, a rigid application of the local rule would arguably place it in tension with the statutory authority of two judges to constitute a quorum. See 28 U.S.C. Sec. 46(d); see also 2d Cir.R. Sec. 0.14(a) ().
We recognize that in the normal course of adjudicating appeals, consideration by three judges is preferable. See Ojeda Rios v....
To continue reading
Request your trial
-
Zhang v. Slattery
...the consideration of this case. The matter was submitted to and decided solely by Judges Miner and Jacobs. See Murray v. National Broadcasting Co., Inc., 35 F.3d 45 (2d Cir.1994), cert. denied, --- U.S. ----, 115 S.Ct. 734, 130 L.Ed.2d 637 (1995).1 The proposed Act provided in pertinent par......
-
U.S. v. Thorn
... ... was the owner of A+ Environmental Services, Inc. ("A+"), an asbestos abatement company in upstate ... in the underlying criminal conduct, co-conspirators in most instances, they willfully ... ...
-
United States v. Ellis
...n.* (10th Cir. 1997) (noting this court allows remaining panel judges to act as a quorum to resolve an appeal); Murray v. Nat'l Broad. Co., 35 F.3d 45, 48 (2d Cir. 1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 734, 130 L.Ed.2d 637 (1995) (remaining two judges of original three judge panel m......
-
Victory v. Pataki
...the remaining members of the panel, who are in agreement. See2d Cir. Local Rules, Internal Operating Procedure E(b); Murray v. Nat'l Broad. Co.,35 F.3d 45, 46 (2d Cir.1994).2 We initially disposed of this appeal in a summary order issued on April 17, 2015. See Victory v. Pataki,609 Fed.Appx......