The Resignation of Judge Nottingham and the Nacchio Appeal

So, what impact will Judge Nottingham's resignation have on the Nacchio appeal?  Following oral argument before the en banc court, the tradition is for the judges to take a tentative vote on the outcome.  The case has, therefore, probably been decided, with the delay coming from the need to draft an opinion (and the inevitable dissent).  The opinion of the majority must then be circulated to the judges of the court and they will either sign off on it or seek to negotiate changes in the language.  There is, therefore, time to change one's mind or insist on changes to the majority opinion.

This process could be impacted by the resignation of Judge Nottingham in two ways.  First, it was quite clear at the oral argument before the original panel (Judges McConnell, Kelly and Holmes) that Judge Kelly was palpably angry at Judge Nottingham, at one point describing a ruling by the trial judge as simplistic.  This took place at the time Judge Nottingham was receiving some horrible publicity with respect to expenditures at a strip club.  In other words, there is at least some indication that outside publicity impacted the views of those deciding the case on appeal.  The same thing could happen here with the lastest round of bad publicity for Judge Nottingham. 

Second, to the extent that the court votes to send the case back to the trial court for additional hearings, it was unclear whether the case would go back to Judge Nottingham.  The panel opinion specifically ordered that a new judge handle any retrial.  But if the case went back to a trial judge for motions, it would have been very inefficient to change the judge.  Now if the court orders remand, it will be burdening another trial judge with the obligation to come up to speed on a long running case, an inefficient decision to say the least.  With Judge Nottingham gone, there is no longer any choice.  It must go back to another judge.  This makes it at least slightly less likely that the en banc court will reach a result that requires additional motions hearings.  

Having said all of that, the current trials and tribulations of Judge Nottingham will probably not impact a decision that was likely reached back in September.