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Howard J. Bashman.[/caption] Upon Further Review The Third Circuit, in common with every other federal appellate court, ordinarily hears and decides appeals using three-judge panels. Currently, the Third Circuit has 12 active judges and two vacant seats. The court also has nine senior-status judges who can volunteer to serve on three-judge panels to whatever extent they desire. As anyone who frequently handles appeals will confirm, the particular composition of a three-judge panel assigned to hear and decide a given appeal can make a tremendous amount of difference to the outcome of the case. To be sure, the vast majority of appeals likely would have the same outcome regardless of which judges heard and decided them, but from time-to-time--in a significant subset of appeals--the composition of a three-judge panel can determine which side of the case will emerge victorious. Earlier this year, Duke law professor Marin K. Levy published an article in the Cornell Law Review examining the extent to which various federal appellate courts actually used random methods to determine the composition of three-judge panels. The article, titled “Panel Assignment in the Federal Courts of Appeals,” is likely to be of particular interest to lawyers practicing in the Third Circuit, because the Third Circuit was one of five federal appellate courts on whose assignment practices Levy’s article focused most closely. The article begins by observing that everyone simply seems to assume that the assignment of judges to three-person panels on the federal courts of appeals occurs randomly. The article then notes that a previous study that Levy performed with a co-author demonstrated in an empirical manner that the composition of federal appellate court panels rarely reflected absolute randomness. In her new article, Levy decided to examine the methods that five federal appellate courts, including the Third Circuit, actually use to determine panel composition, to consider whether the failure to achieve absolute randomness in panel assignment should be a cause for concern. For example, it would be suspicious to say the least if a given federal appellate court having seven Republican appointees and five Democratic appointees never had a three-judge panel consisting solely of Democratic appointees or even a majority of Democratic appointees. And it would be even more troubling if the composition of panels was being manipulated to ensure that panels consistently reached conservative rather than liberal results. Similarly, it would be a cause for concern if high-profile appeals, or appeals otherwise viewed as especially important, were always assigned to certain judges on a multi-judge appellate court instead of being randomly assigned in a manner that gave all judges an equal prospect of receiving them. Fortunately, Levy’s study did not uncover any sort of improper panel composition manipulation at the Third Circuit or any of the other four federal appellate courts whose practices her article considered in greatest detail. But the reasons for failing to achieve absolute randomness that Levy’s study did uncover at the Third Circuit are nonetheless worth considering. To begin with, the Third Circuit, in common with many other federal appellate courts, seeks to maximize the contributions of its senior judges who are willing to continue hearing and deciding appeals on three-judge panels. One perk of electing senior status is that these judges can decide how frequently, if at all, they wish to be assigned to oral argument panels. Thus, the Third Circuit understandably gives preference to assigning senior judges to hear oral argument during the times that senior judges report availability to do so. Next, the Third Circuit allows its active judges to designate certain weeks during the year when they expect to be unavailable to hear oral argument, whether due to other judicial obligations (such as having to attend judicial committee meetings, having volunteered to judge a law school moot court, or speaking appearances) or planned vacations, medical procedures, and the like. The availability of the court’s active judges is then factored-in to deciding which oral argument panels the judges will be assigned to. And if a pair of judges turns out to be assigned to sit together too frequently or too infrequently, an otherwise randomly generated set of panel assignments can be adjusted to ensure that all of the court’s active judges get to have an oral argument sitting with each of their colleagues at least once every two years. Similarly, if a Third Circuit panel will include a U.S. District Judge based within the circuit sitting by designation, the Third Circuit has traditionally excluded from assignment to the panel any appeals originating from the same federal district court on which the district judge presides. And the recusal requirements of any judge on a three-judge Third Circuit panel will necessarily influence the cases that the entire panel can hear and decide. For example, if one judge has a son or daughter working at a major law firm located in the Third Circuit, if the judge has decided to recuse from all of that law firm’s appeals, the law firm will not be having its clients’ appeals decided by any three-judge panel to which that particular judge is assigned. Thus, there are any number of non-random factors that determine whether a given appeal will be assigned to a particular three-judge Third Circuit panel, ranging from the appellate judges’ schedules, to the presence of a district judge sitting by designation, to the recusal requirements of a panel member. But because none of these considerations is related to the merits or substance of a given appeal, having the composition of three-judge Third Circuit panels determined in a way that is not absolutely random should not raise any concerns about panel composition being manipulated to decide the outcome of appeals. Levy’s article is an important contribution to the literature, for being perhaps the first to examine why the composition of federal appellate court panels is not truly random in practice. Fortunately, although the article establishes that absolute randomness may be impossible to achieve, one reasonably can conclude that the Third Circuit’s panel assignment practices are random enough to avoid legitimate concern about any improper manipulation of three-judge panel composition. Howard J. Bashman operates his own appellate litigation boutique in Willow Grove and can be reached by telephone at 215-830-1458 and via email at hjb@hjbashman.com. You can access his appellate web log at http://howappealing.abovethelaw.com/ and via Twitter @howappealing.