USA v. Mario Ponce Rodriguez

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[PUBLISH]

# IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 12-14629

D. C. Docket No. 8:12-cr-00169-EAK-MAP-1

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

versus

MARIO PONCE RODRIGUEZ,

Defendant-Appellant.

Appeal from the United States District Court
for the Southern District of Florida

Before ANDERSON, Circuit Judge, and MOODY* and SCHLESINGER, **
District Judges.

*Honorable James S. Moody, Jr., United States District Judge for the Middle District of
Florida, sitting by designation.

** Honorable Harvey E. Schlesinger, United States District Judge for the Middle District
of Florida, sitting by designation.

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PER CURIAM:

The petition for panel rehearing filed by appellant is DENIED. However,
one issue, raised by appellant for the first time in his petition for rehearing, warrants
brief discussion. Although our panel opinion was not published, this new issue
warrants publication.

On December 30, 2013, the Chief Judge of this Circuit entered General Order
No. 41, declaring, pursuant to 28 U.S.C. §46(b), that an "emergency exists during
which the hearing and determination of cases and controversies may be conducted
by panels of three judges without meeting the usual qualification contained in
§46(b) that a majority of each panel be composed of judges of this Court."1
Section 46(b) provides in relevant part:

In each circuit the court may authorize the hearing and determination
of cases and controversies by separate panels, each consisting of three
judges, at least a majority of whom shall be judges of that court, unless
such judges cannot sit because recused or disqualified, or unless the
chief judge of that court certifies that there is an emergency including,
but not limited to, the unavailability of a judge of the court because of
illness.

28 U.S.C. § 46(b).

1
Because appellant raises this challenge to General Order No. 41 for the first time in
his petition for rehearing, we hold that his challenge is waived; appellant was informed two weeks
before argument of the composition of the panel and could have challenged it at that time. Cf.
Evans v. Stephens, 387 F.3d 1220, 1222 n.1 (11th Cir. 2004) (en banc) (holding that the challenge
to the composition of the en banc court was not jurisdictional but noting that the motion was
timely because it was made before argument). However, the significance of this issue for the
effective operation of the judicial functions of this Court prompts us to nevertheless address the
issue in an alternative holding.

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It was a well-known and indisputable fact, both at the time of the Chief
Judge's General Order and at the time of oral argument and decision in this case,
that this Circuit was authorized to have twelve circuit judges in regular active
service, but that the Circuit had only eight such judges, with four vacancies. It is
also a well-known and indisputable fact2 that the Circuit has experienced several
vacancies for an extended time, and that, even with a full complement of the
Circuit's authorized judges, the Circuit has a heavy case load per judge.

We hold that Chief Judge's General Order No. 41 declares an emergency
clearly contemplated by Congress in §46(b). The statute contemplates the
possibility of such emergency even in the event of an extended illness of a single
judge. See §46(b) ("unless the chief judge of that court certifies that there is an
emergency, including, but not limited to, the unavailability of a judge of the court
because of illness." ) (emphasis added).3 It follows a fortiori that the extended

2
We take judicial notice of the foregoing well-known and indisputable facts. See
Fed.R.Evid. 201(b) ("The court may judicially notice a fact that is not subject to reasonable
dispute because it: (1) is generally known within the trial court's territorial jurisdiction; or (2) can
be accurately and readily determined from sources whose accuracy cannot reasonably be
questioned.").

3
We believe the illness example must refer to an extended illness, because a sudden,
temporary illness of a judge after originally designated to serve on a particular panel is otherwise
provided for in §46(d) ("A majority of the number of judges authorized to constitute a court, or a
panel thereof, ... shall constitute a quorum.")

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shortage of judges caused by the vacancies here, together with the heavy per judge
caseload of this Circuit, qualifies as an emergency contemplated by Congress.4

Although there is very little precedent bearing on this issue, what little there
is supports our holding. See Carolyn Dineen King, Chief Judge's Order Declaring
an Emergency Under 28 U.S.C. § 46(b) (1999), 28 U.S.C.A. § 46, Historical and
Statutory Notes (declaring judicial emergency for the Fifth Circuit and suspending
compliance with § 46(b)'s majority requirement in light of three vacancies, an
injured active judge, and heavy caseload per judge); Charles Clark, Chief Judge's
Order Declaring an Emergency Under 28 U.S.C. § 46(b) (1991), 28 U.S.C.A. § 46,
Historical and Statutory Notes (West 1993) (declaring judicial emergency for the
Fifth Circuit and suspending compliance with § 46(b)'s majority requirement in the
wake of at least two vacancies and heavy caseload per judge); Cf. Whitehall
Tenants Corporation v. Whitehall Realty Co., 136 F.3d 230, 232 n.3 (2d Cir. 1998).

4
We readily reject appellant's suggestion that the two "unless" clauses in the above-
quoted, indented sentence from §46(b) provide an exception from the requirement that each panel
consist of three judges, rather than an exception from the requirement that a majority of the three
judges be judges of that court. We hold that the two "unless" clauses modify, and provide an
exception from, the more immediate of the two preceding phrases. That is, we hold that the two
"unless" clauses provide an exception to the requirement that a majority of the three judges on the
panel be judges of that court. See Whitehead Tenants Corp. v. Whitehead Realty Co., 136 F.3d
230, 232, n.3 (2d Cir. 1998) ("The two 'unless' clauses probably modify the immediately
preceding requirement that two of the three judges must be judges 'of that court."). We need not
address whether the two "unless" clauses also modify the other phrase.