An interesting recusal issue recently faced the Supreme Court of North Carolina, requiring the Court to invoke the “Rule of Necessity” in order to hear a high-profile case on North Carolina teachers’ retirement plans.  As discussed in our prior posts on the issue, here and here, the Rule of Necessity allows for a justice who would otherwise be disqualified to nevertheless perform his or her duty if the failure to do so would amount to the denial of a litigant’s constitutional right to have a question decided by a court of last resort.

Shortly after the Supreme Court of North Carolina invoked the Rule of Necessity, another interesting recusal issue arose, but this time in a high-profile case from the Fourth Circuit, United States v. Dylann Roof.

Most will recall the horrific facts underlying this case: On June 17, 2015, then 21-year-old Dylann Roof opened fire on and murdered nine congregants at Emanuel African Methodist Episcopal Church in Charleston, South Carolina during an evening bible study.   The State of South Carolina charged Roof with nine counts of murder, three counts of attempted murder, and one weapon-possession count.  Roof was also charged with 33 federal counts.  Both South Carolina and the United States sought the death penalty.

Roof’s federal prosecution was led by the U.S. Attorney’s Office for the District of South Carolina, and the lead prosecutor on the case was former AUSA (now Fourth Circuit Judge) Julius Richardson.  After a December 2016 trial on the federal charges, a jury convicted Roof on nine counts of racially motivated hate crimes resulting in death, three counts of racially motivated hate crimes involving an attempt to kill, nine counts of obstructing religion resulting in death, three counts of obstructing religion involving an attempt to kill and use of a dangerous weapon, and nine counts of a firearm to commit murder during and in relation to a crime of violence. The jury unanimously recommended a death sentence, and he was sentenced accordingly. Roof appealed the convictions and sentence to the Fourth Circuit.

While Roof’s appeal was in its infancy, Judge Richardson was nominated, confirmed, and commissioned to the Fourth Circuit.  Thus, the lead prosecutor on Roof’s case in the trial court now sits as a judge on the Court that is mandated to hear his federal appeal.  Under these circumstances, Judge Richardson obviously would have to recuse himself from any consideration of Roof’s appeal.  But not only did Judge Richardson recuse himself, all fourteen other Fourth Circuit judges also recused themselves from hearing Roof’s appeal.

It is unclear from the docket when this mass recusal occurred.  However, in January 2020, shortly before opening briefs were due, Roof, acting pro se, filed a partially sealed motion to have his appeal transferred to another Circuit Court of Appeals, alleging that Judge Richardson’s presence on the Court should disqualify all of the other judges as well.  That motion was denied without explanation in April 2020. Whether Roof’s motion, and the allegations of a full Court conflict therein, played any part in the recusal is unknown, but media articles suggested that the reason for recusal was because Judge Richardson had prosecuted Roof. See here.  Perhaps the judges simply did not feel comfortable sitting in judgment of the actions of their colleague during his prosecution of the case before joining the Court, although I suspect (but have not confirmed) that since Judge Richardson joined the Court there have been other appeals from criminal defendants that he prosecuted but that did not result in mass recusal.  Thus, it was likely a combination of the high stakes and high-profile nature of this case, combined with Roof’s allegations that the judges could not be impartial, that prompted the recusal and thereby remove all potential for Roof to allege that the disposition of his appeal was clouded by a conflict of interest.  Moreover, unlike the problem that faced the Supreme Court of North Carolina in the retirement plan case, the federal courts have a statutory mechanism in place that ensures there are sufficient non-conflicted federal judges available to hear an appeal.

Federal appellate practitioners are no doubt familiar with the situation in which a United States district court judge from within a circuit sits “by designation” on a panel of judges hearing a circuit court appeal.  This practice is authorized by 28 U.S.C. § 292(a), which allows a chief judge of a circuit to “designate and assign one or more district judges within the circuit to sit upon the court of appeals or a division thereof whenever the business of that court so requires.”  Similarly, but less commonly seen in practice, 28 U.S.C. § 291(a) authorizes “The Chief Justice of the United States [to], in the public interest, designate and assign temporarily any circuit judge to act as circuit judge in another circuit upon request by the chief judge or circuit justice of such circuit.”  To address Roof’s Fourth Circuit appeal, Chief Judge Gregory requested that Chief Justice Roberts designate an out-of-circuit panel pursuant to Section 291(a).  Two weeks before oral argument was to be held, the Clerk of Court issued a letter stating that all of the judges of the Fourth Circuit had recused themselves, and thus a panel of judges from other circuits had been designated.  Those judges included an active judge from the Eighth Circuit, an active judge from the Third Circuit, and a Sixth Circuit judge on senior status.  Those three judges sat as the Fourth Circuit panel hearing Roof’s appeal. (The panel noted at the outset of its opinion that “[t]he present panel is sitting by designation, but because we are applying Fourth Circuit law, and for ease of reference, we take the liberty of speaking in the first-person plural.”)

The panel affirmed per curiam the district court in its entirety, upholding the convictions and death sentence.  Not surprisingly, Roof has now sought both panel rehearing and rehearing en banc.  This, of course, raises a number of interesting questions in light of all of the Fourth Circuit judges having recused themselves.  First, who would even vote on the petition for rehearing en banc?  Despite having recused themselves from hearing the preliminary appeal, could the Fourth Circuit judges (minus Judge Richardson, of course) resurface to consider the rehearing petition? And perhaps a predicate question to that question, does anyone need to consider the en banc request at all?  Could the petition just be denied for lack of judges available to vote in the first place?  After all, Federal Rule of Appellate Procedure 35(f) states “A vote need not be taken to determine whether the case will be heard or reheard en banc unless a judge calls for a vote.”  But does a litigant have a “right” to at least have a full circuit court consider the petition, even if the consideration results in no judges calling for a vote?  Also, how many judges would there need to be for an en banc decision by out-of-circuit judges?  There are 14 active Fourth Circuit judges, so would an en banc panel need to have 14 judges?  Or could it be something less?  Rule 35 itself contemplates that the en banc court can be something less than the entirety of active sitting judges, stating that it may be ordered by “a majority of the circuit judges who are in regular active service and who are not disqualified.”  An en banc court in the Fourth Circuit can also be more than 14 judges, as Fourth Circuit’s Local Rules allow for judges with senior status to participate in an en banc review if that judge was on the panel for the decision being reviewed.  And another question: if there is an en banc review (either for a vote or an actual rehearing), would it include the three out-of-circuit judges who were designated as the Fourth Circuit panel that heard the original appeal?  The panel judges in the original decision would ordinarily not be on any en banc court.  Of course, this situation is anything but ordinary.

There is a chance that we will soon find out the answers to some or all of these questions.  Roof recently filed a “Motion for Request to Designate En Banc Panel Pursuant to 28 U.S.C. § 291(a) or § 292(d), or for Designation of En Banc Panel under § 292(a).”   In that motion, Roof asked for Chief Judge Gregory to request that the Chief Justice appoint a Fourth Circuit en banc court comprised of other circuit judges or district court judges pursuant to Section 291(a), already used to appoint the panel whose opinion would be reheard, or pursuant to 28 U.S.C. § 292(d), which authorizes the Chief Justice to “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.” Alternatively, Roof requested that pursuant to 28 U.S.C. § 292(a), Chief Judge Gregory designate a Fourth Circuit en banc court consisting of district court judges within the Fourth Circuit.  The motion made no specific mention of the involvement of the three originally appointed panel members being part of the proposed en banc court.  Nor did the motion suggest the number of judges that would be necessary (or desired) for an en banc review.

Roof’s Motion reflected that the Government took no position on the requests pertaining to the designation of an en banc court.  Nevertheless, the Court wanted to hear from the Government on the merits of the petition for rehearing, and entered a notice requesting that the Government respond.  The Government’s recently filed response argued why further review was inappropriate and unnecessary, but did not address anything about Roof’s request for how an en banc court should be designated in light of the mass recusal of the Fourth Circuit judges.  However, the mere fact that a response was requested suggests that there will be a review of the petition and vote by some group of judges, be it Fourth Circuit or otherwise (typically a response to a petition for rehearing en banc is not requested unless a judge has called for a vote).

This unique situation sent me looking for possible precedent to forecast what might, or could, occur here.  Not surprisingly, other cases in which these issues have arisen are few and far between.  One of the few cases I came across involving wholly out-of-circuit panels is United States v Claiborne, 870 F.2d 1463 (9th Cir. 1989).  That case involved the criminal prosecution of Judge Harry Claiborne, then an active sitting district court judge in the District of Nevada who was indicted for alleged taking of bribes and unrelated tax evasion and tried in the district court in which he was a judge.  Both 28 U.S.C. § 291(a) and § 292(d) were implicated there.  Then-Chief Justice Burger, upon request from then-Ninth Circuit Chief Judge Browning, designated Senior District Judge Walter Hoffman from the Eastern District of Virginia to preside over Judge Claiborne’s trial.  (Judge Hoffman was not a stranger to high-profile cases, having been actively involved in desegregation cases and the sentencing of Vice President Spiro Agnew.  He was also the creator of E.D.Va.’s famed “rocket docket.”)  Chief Judge Browning also certified to Chief Justice Burger the need for out-of-circuit circuit judges to preside over all related appeals.  Chief Justice Burger designated two out-of-circuit panels pursuant to 28 U.S.C. § 291(a) for Claiborne’s case, the first panel to hear an appeal of a pretrial motion to dismiss the indictment, and a second, different panel to hear an appeal of Claiborne’s subsequent conviction.

Notably, the Ninth Circuit judges subsequently did participate in Claiborne’s case.  After the second out-of-circuit panel affirmed his conviction, Claiborne filed a request for rehearing en banc.  That request was “rejected by a majority of active judges who did not recuse themselves.”  After the request for en banc review was denied, the case was remanded and Claiborne moved to stay execution of his sentence.  When Judge Hoffman denied the stay, Claiborne appealed that order.  This time, the third appeal in the case, a “regular panel of Ninth Circuit judges” heard the appeal and affirmed.  Once again, en banc review was requested, and once again it was denied “by a majority of the non-recused judges” of the Ninth Circuit.

What is unclear from Claiborne is whether some or all of the Ninth Circuit judges had recused themselves from taking part in the first two appeals and then did not recuse themselves from the request for en banc reviews and the third appeal (which seems unlikely), or if some of the judges had officially recused themselves from the first two appeals but others had not.  This issue, in fact, was the subject of a fourth appeal by Claiborne.  This last appeal was also heard by a panel of three regular Ninth Circuit judges.  Claiborne contended that Chief Judge Browning was required to take a poll of the Ninth Circuit judges regarding whether they could appropriately hear the case before certifying the necessity of out-of-circuit judges to the Chief Justice.  This contention implies that the Ninth Circuit judges (or at least not all of them) had not announced their own recusals from the case before the Chief Judge sought designation of an out-of-circuit panel, and the Chief Judge had simply felt that under the circumstances (a sitting district court judge whose rulings they regularly reviewed and might have to continue reviewing being a party before them as a criminal defendant) an out-of-circuit panel was prudent or necessary.  The Ninth Circuit panel hearing this fourth appeal, which ironically had them sitting in judgment of the actions of their own Chief Judge, held that no such polling was necessary.

So does Claiborne provide any insight into what might happen in Roof?  Not really.  In Claiborne, it appears that there were at least some Ninth Circuit judges who had not recused themselves and thus in fact were available to entertain en banc requests and subsequent appeals in the case.  By contrast, the entirety of the Fourth Circuit judges have officially recused themselves from involvement in Roof.  Thus, if an en banc court in Roof is designated, it will need to be comprised of circuit judges from outside the Fourth Circuit (Section 291(a)), district court judges from outside the Fourth Circuit (Section 292(d)), Fourth Circuit district court judges (Section 292(a)), or perhaps some combination of all three.  Given the nature of the case, I suspect that there will be an en banc court appointed, so that there can be no question as to whether Roof was afforded due process.  What that en banc court looks like remains to be seen.  How many judges are designated, who those judges are, and whether the three panel judges are included are all fascinating questions.  And might the court even include retired Justice Anthony Kennedy (or Justices Souter or O’Connor?)  It technically could.  Under 28 U.S.C. § 294(a), “[a]ny retired Chief Justice of the United States or Associate Justice of the Supreme Court may be designated and assigned by the Chief Justice of the United States to perform such judicial duties in any circuit, including those of a circuit justice, as he is willing to undertake.”

If you have any experience with similar recusal issues or designations under any of the discussed statutes, have insight into the questions raised above, or any other thoughts on these issues, please feel free to comment below.

Finally, while I’ve made this post because the case raises interesting issues of federal appellate procedure, it cannot be ignored that those issues ultimately arise from one of the worst domestic terror events that this country has ever seen.  And while the academic exercise of pondering these appellate issues might be enjoyable, there is a part of me that struggled with the idea of even writing this blog post because of the underlying matter.  To that end, and so that there is no question about what is truly important about this case, I am compelled to close this post by sharing the Fourth Circuit panel’s powerful and important conclusion to the opinion it authored:

Dylann Roof murdered African Americans at their church, during their Bible-study and worship. They had welcomed him. He slaughtered them. He did so with the express intent of terrorizing not just his immediate victims at the historically important Mother Emanuel Church, but as many similar people as would hear of the mass murder. He used the internet to plan his attack and, using his crimes as a catalyst, intended to foment racial division and strife across America. He wanted the widest possible publicity for his atrocities, and, to that end, he purposefully left one person alive in the church “to tell the story.” When apprehended, he frankly confessed, with barely a hint of remorse.

No cold record or careful parsing of statutes and precedents can capture the full horror of what Roof did. His crimes qualify him for the harshest penalty that a just society can impose. We have reached that conclusion not as a product of emotion but through a thorough analytical process, which we have endeavored to detail here. In this, we have followed the example of the trial judge, who managed this difficult case with skill and compassion for all concerned, including Roof himself. For the reasons given, we will affirm.

–Patrick Kane

**A huge thank you to Julianna Bender, College of the Holy Cross Class of 2023, for digging into statutes and cases to help me with this blog post.  Julianna previously did a tremendous amount of research for a blog post on Fourth Circuit oral argument back in January, and after spending her summer interning with The Federalist Society, her interest in the law is now even stronger and she jumped at the chance to help with this post too.