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.”
