In United States v. Bradley, the Court of Appeals for the Second Circuit affirmed Judge Sullivan’s holding that he, a current circuit judge and former district judge, could temporarily sit by designation as a district judge, to continue working on cases over which he originally presided as the district court judge.  124 F. 4th 106 (2d Cir. 2024) (Newman, Cabranes, and Pérez).  In doing so, the Court found that the two designation orders at issue neither violated the Appointments Clause of the Constitution, nor 28 U.S.C. § 291(b), the statute under which the designations were made, because they provided for temporary designations and were in the public interest.  While it may appear anomalous for a circuit judge to continue to hear cases as a district judge, the practice is common and a decision to reverse here might have impacted many other cases decided in the past.

Background

In December 2013, John Bradley pleaded guilty to one count of possessing a firearm in violation of 18 U.S.C. §922(g)(1), which limits firearm access for individuals previously convicted of certain crimes—in Bradley’s case, a prior conviction of selling crack cocaine.  Then-District Judge Sullivan sentenced Bradley to three years’ imprisonment, followed by three years’ supervised release.

In October 2018, Judge Sullivan was appointed to the Court of Appeals for the Second Circuit.  Relevant here, the Chief of the Court of Appeals for the Second Circuit, Judge Livingston, issued an order that designated Judge Sullivan to sit in the district court “from January 1, 2023 through December 31, 2023 and for such additional time as may be required to complete unfinished business.”  Judge Livingston then entered the same order for the 2024 calendar year, with a similar provision for “such additional time as may be required to complete unfinished business.”

In 2023, the Probation Office filed two reports against Bradley, which together alleged that Bradley violated the terms of his supervised release by (1) testing positive for marijuana; (2) leaving the judicial district without permission; and (3) strangling and assaulting a former romantic partner in violation of New York state law.

Pursuant to the designation orders, Judge Sullivan presided over the revocation proceedings.  Bradley moved to recuse Judge Sullivan, arguing that the designation orders violated the Appointments Clause of the Constitution, U.S. Const. art. II, §1 cl. 2, and the statute under which the designation was made, 28 U.S.C. § 291(b). 

Judge Sullivan denied the motion, reasoning that (1) the Appointments Clause was not violated because the congressionally defined office of “circuit judge” includes the authority to serve as a district court judge when the requirements of 28 U.S.C. § 291(b) are met; and (2) the requirements of 28 U.S.C. § 291(b) were met because the designation was temporary and in the public interest, notwithstanding that the orders did not make specific findings of public interest. 

After an evidentiary hearing on the violations of supervised release (“VOSR”), Judge Sullivan concluded that they were proven by a preponderance of the evidence and sentenced Bradley to 18 months’ imprisonment, followed by 18 months’ supervised release. 

Opinion

Bradley appealed his VOSR conviction and raised the same constitutional and statutory challenges.  Specifically, Bradley argued that the designation orders violated (1) the Appointments Clause because they exceeded the bounds of the temporary assignment exception under 28 U.S.C. § 291(b); and (2) 28 U.S.C. § 291(b) because they (a) were “not limited in time, or to particular matters,” and therefore gave Judge Sullivan discretion to determine the scope of his designation; and (b) did not contain findings that the designation was in the public interest. 

The Court of Appeals for the Second Circuit (Newman, Cabranes, and Pérez) was not persuaded, and affirmed.  As to Bradley’s Appointments Clause challenge, the Court explained that “principal federal officers” not provided for in the Constitution, such as district and circuit court judges, “shall be established by Law,” and that Congress exercised its legislative power to authorize judges to sit by designation under 28 U.S.C. § 291(b).  The Court continued that (1) Bradley failed to distinguish Judge Sullivan’s designation from the long-standing, congressionally authorized practice of sitting by designation in federal courts (particularly the tradition in this Circuit of judges sitting by designation to handle cases over which they presided as district judges); and (2) the designation orders were temporary, not perpetual, as they were limited by date and the completion of “unfinished business.”

As to Bradley’s statutory challenge, the Court reasoned that  (1) the designation orders were “temporary” within the meaning of the statue because while the term “‘unfinished business’ is not especially specific,” the orders “c[ould] not reasonably be understood as a permanent authorization” because they had discrete endpoints; and (2) the text of the statute did not require Chief Judge Livingston to make an initial finding of public interest, as she had discretion to make this determination, and holding otherwise would inject “intolerable uncertainty” into the cases heard before a designated judge. 

Commentary

The Court’s concise opinion was grounded in text and precedent.  The policy considerations raised by the parties are worth highlighting as well.   

As the Government noted, authorizing judges to sit by designation helps the federal judiciary manage its workload and resolve cases efficiently.  This is particularly true where, as here, the designation orders allow a judge familiar with the facts of the case to preside over that case.  In Judge Sullivan’s words, his “familiarity with the facts [made him] best situated to determine the breaches of the Court’s trust that resulted from the alleged violations of supervised release.”  The Government leaned on similar reasoning applied in United States v. Garcia, where the Court of Appeals for the Second Circuit observed, in the context of remands to correct sentencing errors after United States v. Booker, 543, U.S. 220 (2005), that “the original sentencing judge, already familiar with the case, can most efficiently supervise any record expansion necessary to comparative sentence analysis.”  413 F.3d 201, 227 (2d Cir. 2005) (Calabresi, Parker, and Raggi). 

However, the primary policy argument made by Bradley—that circuit judges may be less inclined to reverse the decision of a colleague sitting on their Court—was not a consideration in Garcia.  As Bradley noted, scholars have long observed that “[a]ppellate review of a fellow circuit court judge’s trial rulings entails the worst of both reversal aversion and dissent aversion,” since “appellate judges may feel reluctant to reverse a colleague who they like and with whom they will have to work tomorrow.”  Jordan T. Smith, Richard A. Posner, Circuit Judge, Sitting by Designation in the District Courts, 30 Regent U. L. Rev. 259, 261 (2018).  Accordingly, he argued, the independence with which district court decisions are reviewed may be compromised when a circuit judge is regularly presiding over district court proceedings.  

There seems to be little risk of that occurring here, given the infrequency with which this situation arises.  Most of the time, circuit judges are hearing appeals and not sitting by designation in the district court.  The time-limited nature of the designation and the “continuing” nature of the judge’s role in a given case are good safeguards to any possible abuse.  In addition, there is a long tradition of district judges sitting by designation as circuit judges, helping to expedite the hearing of appeals, and it may be that the panel recognized that these temporary designations would also be at risk if the Court reversed here.

The facts presented here were important to the panel’s decision.  The Court held that the orders at issue were sufficiently temporary, and it made clear that the “outer bounds of permissible judicial designation under the Appointments Clause” remains an open question.  For example, a circuit judge who wanted to be helpful to his or her district judge colleagues who are faced with very crowded dockets, or was simply bored with the pace of appellate judging, could not sit full-time on the district court bench for months or years on end.  Such a situation would likely raise different questions than those presented in this appeal, as the designation would be neither temporary nor in any sense related to the judge’s prior service on the district court.