Nacchio, Bail Pending Appeal, and the Random Assignment of Cases at the Court of Appeals

Yesterday, a three judge panel at the US Court of Appeals for the 10th Circuit granted Joe Nacchio, the former CEO of Qwest Communications, bail pending appeal.  The order is posted on the DU Corporate Governance web site.  Nacchio was convicted of 19 counts of insider trading and sentenced to six year in prison.  The short two page order invoked 18 USC 3143(b) which essentially requires, as a recondition to bail pending appeal, the raising of a "substantial question of law or fact" that is "likely to result" in, among other possibilities, reversal.  The order, therefore, sends a clear message that the three judges (Kelly, McConnell and Holmes) believe that there may have been reversible error committed in the case.  The order set down an expedited appeal schedule for the case, with oral argument scheduled for mid-December. 

The order got us thinking back about how cases are assigned to panels at the US Court of Appeals and whether these same three judges would hear the merit appeal.  It certainly would be important to both sides since this order at least indicates the three judges are leaning in Nacchio's direction.

The short answer is that it depends upon the circuit.  All of the circuits purport to assign cases to panels on a random basis, although only a few have a rule that actually requires this.  As the article, The Neutral Assignment of Judges at the Court of Appeals, makes clear, there is no guarantee that this is the case.  Most circuits do not have a fail safe system for ensuring random assignment of cases to panels, with some circuits worse than others.  The 10th Circuit has the best system because the method of assigning is done entirely by computer and an audit trail is kept for any subsequent changes in panel composition.  For additional information on circuit practices, at least as of the late 1990s, go here.

With respect to merit appeals, most circuits assign these cases randomly.  Some, however, have a rule that if there has been substantial prior involvement in the case prior to the merit appeal, an effort will be made to assign the case to the same judges.  This is true, for example, in the Fourth Circuit.  See, e.g. Internal Operating Procedure  34.1, US Court of Appeals, 4th Circuit ("Every effort is made to assign cases for oral argument to judges who have had previous involvement in the case on appeal through random assignment to a preargument motion or prior appeal in the matter,").  In those circuits, therefore, a panel of judges having prior involvement in a case could end up hearing the merit appeal.  If this were true, it would be possible to see the judges deciding Nacchio's bail motion also deciding his merit appeal.  

The Tenth Circuit, however, does not have such a rule.  Ordinarily, this would mean that the case would be assigned randomly and the judges deciding the bail motion would probably not also hear the merit appeal.  The posture of this case, however, is a bit unusual.  Because the panel set oral argument for December, it will have to be heard outside the regular term of the 10th Circuit.  In other words, it will require a special session and the creation of a panel specifically for this case (although it may well hear others at the same time). 

Even in these circumstances, however, the Tenth Circuit is likely to form the panel through random assignment, without consideration of the earlier motions with respect to bail pending appeal.  Thus, while there are three judges on the Tenth Circuit who see some merit to the Nacchio appeal, they will not likely decide the case on the merits.