A Fourth Circuit published opinion from earlier this week revealed an interesting panel composition issue, as the panel that heard the oral argument in the appeal was slightly different from the panel that ultimately issued the opinion. In Foodbuy, LLC v. Gregory Packaging, Inc., when introducing the panel of Circuit Judges Niemeyer and Agee and District Court Judge Kleeh sitting by designation, the opinion noted with an asterisk that “after argument, Judge Quattlebaum recused himself, and Judge Niemeyer elected to participate on the earlier recorded oral argument, briefs, appendices, and district court record.”  The recusal came about because years ago, prior to taking the bench, Judge Quattlebaum had been in private practice at the firm representing one of the parties to the appeal and the case was being handled by the firm when he was still there.  While Judge Quattlebaum had been in a different geographic office from where the case was being handled, had not been involved with the case at all, and all parties were clear that they had no concerns about his ability to be fair and impartial, his recusal in this situation was mandatory.  Of course, because parties in the Fourth Circuit are not aware of who their panel is until the morning of the argument, the issue was not identified until after the argument had taken place with Judge Quattlebaum’s participation.  After the parties briefed the recusal issue, the Court entered an Order noting Judge Quattlebaum’s recusal and replacing him with Judge Niemeyer.

The addition of a new judge to a panel post-argument is not something that I can recall having seen recently.  In fact, a while back I posted about a situation in which a Fourth Circuit panel issued an opinion with only two judges pursuant to 28 U.S.C. § 46 after one of the assigned panel members was unable to participate in oral argument.  The Fourth Circuit’s internal operating procedures also contemplate a two-judge panel, as IOP-36.2 states that “an appeal may be heard and decided by two of the three judges assigned to a panel, when one judge becomes unavailable. If a panel is reduced to two and the two cannot agree, however, the case will be reargued before a new three-judge panel which may or may not include prior panel members.”  The ultimate opinion in this case was unanimous, thus it does not appear that Judge Agee and District Court Judge Kleeth could not agree.  And in any event, if that had been the case then per IOP-36.2 the case would have been reargued before a new panel.  So why, then, did Judge Niemeyer slot in after Judge Quattlebaum was recused, as opposed to the remaining two judges issuing the opinion?  The most likely explanation I can come up with is that because one of the two remaining judges was a District Court Judge sitting by designation, the Court didn’t want to (or couldn’t?) apply the statute and operating procedure that would allow for a two-judge panel.  If you have thoughts on this post-argument substitution, put them in the comments.

–Patrick Kane