What You Need to Know
Appellate judges say sitting by reverse designation helps ease caseloads and brings new perspective.
One expert said the practice could become more feasible post-pandemic, with virtual hearings.
As an appellate judge, Timothy Tymkovich reviews briefs, hears oral arguments and sits alongside his colleagues on three-judge panels. But in the last few years, he’s taken on a new gig: sitting at the district court-level as a visiting judge.
Tymkovich is one of five judges on the U.S. Court of Appeals for the Tenth Circuit who presided over district court cases. While it’s far more typical for trial judges to visit appellate courts, Tymkovich said he and his colleagues are motivated by both a desire to help tackle lower court caseloads and to gain a different perspective.
“To the extent we circuit judges review the work of the district court judges, it’s not a bad idea for us to go down and, and work in the trenches and be exposed to some of the pressures that they all feel,” Tymkovich said.
‘Scrambling for Help’
It’s more common for district judges to sit on appeals courts than the other way around, but over the years, some court watchers have raised the idea that both customs should be encouraged.
Most recently, an article in Duke University’s Bolch Judicial Institute’s scholarly journal by professor Marin Levy noted the benefits both courts can gain from the practice, which she called “sitting by reverse designation.”
Merritt McAlister, a law professor at the University of Florida, said remote proceedings spurred by the pandemic could make sitting by reverse designation more feasible.
“Maybe our Zoom era will make some of the logistical barriers to reverse designation lower, because it will be easier to conference with parties remotely [and] hold hearings leading up to a trial, which seems to me the real benefit for the court of appeals judge,” McAlister said.
Merritt McAlister, professor at the University of Florida Levin College of Law. Courtesy photo
From September 2021 to September 2022, there were 32 federal appeals court judges who provided services to district courts, according to statisticsfrom the Administrative Office of the U.S. Courts (compared to 160 district judges who visited appeals courts in the same time period). A decade earlier, there were 22 appellate judges who provided services to district courts in a 12-month span. And from 2011 to 2012, that number was 11.
Not every judge included in those numbers are ones who volunteer. Judges who are assigned to special district court three-judge panels to handle redistricting cases are also included in the AO’s statistics. It’s also unclear if the data includes appellate judges who are elevated from district courts and retain some cases from their district court docket for a brief period.
Tymkovich said he volunteered to take cases in the District of Northern Oklahoma following a U.S. Supreme Court ruling in 2021 that led to an increase in filings there. In McGirt v. Oklahoma, the justices held that much of the eastern portion of Oklahoma is Native American territory, meaning crimes and regulatory matters on those lands fall under federal jurisdiction. That led to an increase in new case filings in Oklahoma’s district courts.
“[T]hey were just really scrambling for help,” Tymkovich said.
The Judicial Conference has recommended that Congress authorize the creation of five new judgeships in Oklahoma, but lawmakers haven’t passed a new judgeship bill since 1990. Tymkovich said sitting by reverse designation is one way to help deal with high workloads in some courts.
“It’s an important way for the federal judiciary to adjust to changing conditions, knowing the chances of getting new judgeships in some of these locations is going to be a slow and timely and difficult process,” he said.
Judge Jennifer Elrod, of the Fifth Circuit, has sat by reverse designation multiple times in the past few years, including overseeing criminal sentencings and a jury trial in an employment discrimination case in the Southern District of Texas. She agreed the practice helps ease the pressure on particularly busy courts.
“This is a way, at least in the short run, to try to meet some of the needs that courts have,” she said, while noting that appellate judges shouldn’t take on the responsibility if it will interfere with handling their own appeals.
‘A Fresh Perspective’
Outside of helping with caseloads, there are upsides for appellate judges too.
Former Judge Richard Posner of the Seventh Circuit has previously urged his appellate colleagues to volunteer to sit on trial courts. And in his 2016 book “Divergent Paths,” Posner wrote: “How can an appellate judge review a trial when he has never seen one, except perhaps in a movie?”
Judge Richard Posner of the U.S. Court of Appeals for the 7th Circuit, in Chicago.
In one case in 2020, Tymkovich presided over an excessive force case in the District of Colorado. He declined to overturn a jury verdict on the basis of qualified immunity in a case where sheriff’s office deputies who were accused of dragging a woman from her home, taking her to jail and tasing her when she wasn’t a threat.
Tymkovich said it has been helpful to put himself in a district judge’s shoes and see the pressures they face.
“I’ve had several complex civil cases where, unlike at the circuit, you have to ponder the issue without having two other colleagues to share their thoughts and views about the correct resolution,” he said. “So it’s been interesting for me to fly solo in cases where you’d say, ‘Well, gee, it’d be nice if I could kick this around with two other colleagues before I decide what the correct outcome should be.’”
Before joining the Fifth Circuit, Elrod served on the 190th District Court in Harris County, Texas. But she hadn’t handled criminal matters in that role, and sitting by reverse designation in the Southern District of Texas gave her the opportunity.
She said she has presided over almost three dozen sentencings at the district court, and taken lessons back with her to the appeals court.
“We have so many appeals that deal with sentencing issues that I thought it would give me a fresh perspective to see what is involved in a sentencing. What are the areas where judges can possibly make mistakes?” she said. “It was a tremendous learning experience and I think it made me a better appellate judge.”
Barriers
Sitting by “reverse designation” isn’t always feasible though. McAlister said logistical issues likely prevent more appellate judges from visiting district courts. Appellate matters can be less of a time commitment, whereas cases at the trial court level can stretch on for years, she said.
“It’s a lot easier to visit a court of appeals because the matters are contained and discrete. You can sit for a few days during an argument calendar in a court of appeals, hear eight cases, leave with one or two writing assignments, and then be done with it. If you sit as a court of appeals judge on a district court, you may have matters that stretch on for years,” McAlister said.
In a 2017 law review article, Nevada-based attorney Jordan Smith entertained Posner’s proposal for a requirement that judges sit by reverse designation, and looked at potential issues that could arise if a visiting appellate judge’s ruling is appealed.
For one, panel members may be reluctant to reverse a lower court decision made by one of their own colleagues, and use softer language than they normally would.
But, he said, “if the appellate judges don’t get along with each other or aren’t necessarily on good terms, you can see potentially harsher language or things of that nature instead.” He said that would further fray collegiality at the circuit level.
Smith, a partner at the Las Vegas firm Pisanelli Bice, said in both scenarios, the judges likely wouldn’t consciously allow interpersonal relationships to alter their writings.
His solution: a requirement that appellate judges sitting by reverse designation only do so in district courts outside of their own circuit.
He also noted it may be easier for appellate judges on courts that see fewer appeals to visit district courts.
“It’s probably more difficult for those busier appellate judges to take time away from their appellate docket to sit in the trial courts. That might slow down their case processing on those busier circuits,” Smith said.
Tymkovich doesn’t see reluctance to reverse colleagues as an issue. He noted that many appellate judges already have relationships with district court judges and magistrate judges who they end up reversing on occasion.
“That kind of goes with the territory when you choose to sit at the district court level,” Tymkovich said. “The judges on my circuit are going to call the case the way they see the correct legal outcome is, no matter who the judges below are.”
Elrod said many of her colleagues ask her if she’s afraid the Fifth Circuit will reverse her, and pointed to the time the Fourth Circuit reversed former Chief Justice William Renquist after he sat by designation on a district court in Virginia in a 1994 trial. But she said it’s not a concern.
“Who better to reverse me than my own hard working colleagues?” she said. “Any good judge should expect to be reversed if they’re wrong. And I don’t believe that my colleagues would be reluctant in that area.”
By Max Kutner · 2023-04-06 20:21:50 -0400 · Listen to article
Changes in the White House’s political party or a state attorney general’s office can upend their wage and hour litigation, which can cause complications for remaining parties and result in dismissals that don’t resolve underlying issues, observers said.
Changes in political parties can mean more work for remaining parties and a lack of precedential rulings on wage and hour issues, according to employment law observers. (AP Photo/Manuel Balce Ceneta)
In the Ninth Circuit, when a group of Republican state attorneys general filed in February to appeal the dismissal of their challenge to a U.S. Department of Labor federal contract worker minimum wage rule, they did so without Arizona. The Grand Canyon state had been the lead plaintiff, but a Democrat had become attorney general.
Earlier in the President Joe Biden administration, the DOL dropped a Second Circuit appeal the agency had brought under President Donald Trump of a lower court order invalidating a Trump-era joint employer rule.
And under Trump, the DOL ended a Fifth Circuit appeal the government had launched under former President Barack Obama in a case challenging a rule raising the salary threshold for overtime pay. Earlier in that case, Nevada had dropped out as lead plaintiff when voters there elected a Democrat as attorney general.
Employment law observers said such changes can mean more work for remaining parties and a lack of precedential rulings on wage and hour issues.
“In this kind of litigation, political changes which complicate the normal operation of the appeals process are just part of the package,” said Sachin Pandya, a University of Connecticut School of Law professor who represented an amicus backing the DOL in the Fifth Circuit case.
Here, Law360 explores how political party changes impact wage litigation.
More Work For Remaining States
Data show state attorneys general are increasingly challenging federal rules, and states sometimes withdraw from such cases when voters elect an attorney general from a different political party.
“When there are party changes, not surprisingly, we see a lot of shuffling around of the states involved in the lawsuit,” said Paul Nolette, an associate professor and political science department chair at Marquette University.
“You can almost predict with very high certainty that when there’s a party switch, there’s going to be these mass withdrawals or joining the partisan lawsuits,” said Nolette, who maintains a database of state attorney general litigation and published a book on the subject.
In the 2022 elections, three states had party flips for their attorneys general, including Arizona. In the prior four years, eight state attorney general offices switched party affiliation, including in Nevada.
The departure of the state leading such a case can be challenging for staffers in another state that has to take up the fight, Nolette said.
“The other states that are involved in the case are typically just sign-on states,” he said. “The lead state in the case is doing a lot of work. And so when the lead state leaves, then somebody has to slot in as the new lead, and that can be complicated.”
For staffers in the outgoing state, having to leave the case can be a letdown.
“If you’ve just spent five years working on a case and then someone comes in and drops it, the general reaction is going to be, it’s fairly deflating,” said Peter Brann, a Harvard Law School visiting lecturer who teaches a course on state attorneys general. “‘Someone’s essentially telling me that I just wasted five years of my life.’ That could be the reaction.”
But such state departures are not necessarily surprising, said Jordan Smith of Pisanelli Bice PLLC, who was deputy solicitor general in Nevada and counsel in the overtime salary threshold case.
“You sometimes find it disappointing but not unexpected, when different administrations have different legal views on contested issues and different priorities,” Smith said.
A court is unlikely to bar a state from leaving a case, observers said.
“It’s almost matter of fact, not even a question, if you voluntarily dismiss yourself from the lawsuit,” Nolette said.
An opposing party or an amicus backing the opposing party could view a state’s departure as a sign that the opposing position is correct, said Joe Gaeta, director of oversight and engagement at Democracy Forward, a legal organization that represented pro-worker amici in the case Arizona led.
“In a case like Arizona, where after an election you have a change in political party, there may be something there that says that the people of that state did not like the direction that their attorney general was committing them,” said Gaeta, who served in federal government during the Biden and George W. Bush administrations and previously worked at the Rhode Island attorney general’s office.
“We are encouraged when we see changes in positions like this,” he said. “It is important for people to understand what state AGs are doing, what positions they’re taking in court on behalf of the state, and really reflecting as to whether that’s what they want.”
An Easier Win For States
Just as state attorneys general sometimes leave cases due to political changes, the federal government sometimes drops appeals the prior presidential administration brought in cases challenging federal rules.
“New administrations might have different views on these difficult legal questions,” said Pisanelli Bice’s Smith. “It’s not surprising to me when there’s a change of administration that they might view these complicated questions differently than predecessors.”
For states that wanted to halt a rule and won a favorable ruling in the lower court, the federal government’s decision to drop an appeal is an easy win for them, observers said.
And just as courts typically let a state withdraw from a case, they also usually agree to let the federal government drop its own appeal, observers said. Sometimes amici backing the appeal will still push for an order that vacates the lower court ruling, as happened in the Second Circuit joint employer rule case.
It’s unlikely that a court would make a party stay in the case, especially when the departure would resolve the case, said Harvard’s Brann, who is also a former Maine assistant attorney general and state solicitor and a partner at Brann & Isaacson.
“Courts, as a general matter, are all too happy to hear…the parties got rid of this thing, it’s no longer on your docket,” Brann said. “You don’t hear a lot of judges going, ‘Oh, drat, I really wanted to struggle with that one for another two years.”
A Lack of Resolution
States are likely happy with their easier win in such cases. But when they want a precedential ruling that clarifies underlying legal issues, a dismissal of this kind doesn’t bring such a resolution, University of Connecticut’s Pandya said.
“Part of the motivation for the parties litigating the case, as well for amici, is to settle the law,” Pandya said. If the federal government drops its appeal, “then all the work in getting a circuit court to rule on the legal issue and therefore establish some kind of precedent, that opportunity goes away too,” he said.
When the government seeks to dismiss its own appeal, including when it has done away with the prior administration’s rule, a federal court generally doesn’t issue an opinion anyway, Pandya said.
“If the challenged rule is no longer in operation because it’s been withdrawn, then there’s no stake in the litigation, and courts are typically loath to issue what then would be effectively an advisory opinion,” he said.
Sometimes a federal circuit court dismisses the case but also agrees to vacate the lower court ruling.
In the joint employer rule case, the Second Circuit did that after business group intervenor-appellants argued in a motion that “the rule of law requires a judicial resolution of the important questions presented by the district court’s erroneous decision, which otherwise will continue to have harmful effects.”
As state attorneys general become more political, they could be participating in, and potentially leaving, more of these cases, Nolette said.
Nolette documented 55 cases that state attorneys general brought against the Biden administration so far, which is the same number that states brought during all of Obama’s second term and more than during Obama’s first term.
While Trump was in office, states brought 160 cases, more than during any president going back at least to former President Ronald Reagan, according to Nolette’s data.
But with fewer swing states, party changes aren’t happening as much in the state attorney general offices, he added.
The federal government is perhaps more likely to drop appeals than state attorneys general are to leave cases, as the president’s party tends to change every four or eight years, Nolette said.
“A lot of these cases take more than four years,” he said, “so they tend to cross over into party switches and different administrations.”
–Editing by Nick Petruncio.
Litigation comes naturally to Jordan Smith. “I’m from a family of lawyers, including my grandfather, father, mother, two uncles, aunt, brother and my wife,” Smith said. Having served as Deputy Solicitor General of Nevada, Smith is now a partner at Pisanelli Bice, one of the most prestigious law firms in the state.
“I’ve been a part of some of the most significant recent cases in Nevada. With Pisanelli Bice, I am lead counsel in the State’s litigation against the Department of Energy related to a secret plutonium shipment to the Nevada National Security Site and part of the team contesting the Yucca Mountain nuclear repository,” Smith said. While previously working at the Nevada Attorney General’s Office, Smith contributed to numerous other high-profile cases but considers being promoted to partner of Pisanelli Bice his greatest professional accomplishment to date.
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RENO — Nevada’s attempt to force the federal government to remove half a metric ton of weapons-grade plutonium can move forward, a federal judge in Reno ruled Monday.
The nine-page decision from U.S. District Judge Miranda Du means Nevada will be allowed to file an amended lawsuit asking the court to require the U.S. Energy Department to remove the plutonium that was secretly shipped into the state last year.
The Ninth U.S. Circuit Court of Appeals shot down Nevada’s initial appeal because the complaint only asked to block the shipment of plutonium to Nevada and did not request that it be removed. When the state filed the first lawsuit against the Energy Department in 2018, it was not yet known that the nuclear material had already been shipped to the Nevada National Security Site, a federal facility located roughly 65 miles northwest of Las Vegas. The federal government did not disclose that information until this year.
A federal judge in South Carolina last year ordered the Energy Department to remove one metric ton of weapons-grade plutonium from the Savannah River Site in South Carolina. A half-ton was shipped to Nevada last fall, and the Energy Department announced in August that another half-ton had been shipped to either Texas or New Mexico.
In April, Sen. Catherine Cortez Masto, D-Nev., said she had struck a deal with Energy Secretary Rick Perry to remove the plutonium from Nevada starting in 2021, and that no additional plutonium would be sent to the Silver State.
LAS VEGAS – (Feb. 1, 2019) James J. Pisanelli and Todd L. Bice, founding partners of Pisanelli Bice, PLLC, announce that Jordan Smith has rejoined the firm as of counsel. Mr. Smith joined the firm in 2012 and now returns after serving as Deputy Solicitor General of Nevada. He will represent the firm in matters related to appellate and complex litigation.
“I am pleased to be rejoining the firm and look forward to advocating for our clients,” said Smith. “It is an honor to be a part of one of the leading law firms in Southern Nevada.”
Mr. Smith has more than eight years of experience in appellate and complex litigation. He has argued 18 times in various state and federal appellate courts on a range of issues, including business disputes, administrative law, bankruptcy, habeas corpus, and the death penalty.
While at the Nevada Attorney General’s Office, Mr. Smith represented the state in many constitutional cases and matters of statewide or national importance. He was lead counsel in the state’s first method of execution challenge since 2006, won a nationwide injunction against an unlawful federal regulation in a multi-state lawsuit, and successfully defended the state in the Court of Appeals for the Fifth Circuit against an effort to jump-start the Yucca Mountain nuclear waste project.
Mr. Smith has been recognized by his peers as one of Nevada’s leading litigators, including being named by Best Lawyers as the “Appellate Practice Lawyer of the Year” for Las Vegas, a “Legal Elite” by Nevada Business Magazine, “Appellate Practice Rising Star” by Mountain States Super Lawyers, and a “Top Lawyer” in litigation by Desert Companion Magazine.
“We are excited to welcome Jordan back to our legal team,” said Pisanelli. “He returns to us with an impressive record of litigating in the state and federal courts, and we know that he will serve our clients well and with the highest skill level they have come to expect from Pisanell Bice.”
Mr. Smith is a member of the State Bar of Nevada and the Federalist Society and regularly argues pro bono appeals in conjunction with the Legal Aid Center of Southern Nevada. He has published several scholarly articles in peer-reviewed journals on issues of gaming law and statutory interpretation. Mr. Smith also engages in continuing legal education presentations and other speaking engagements.
