11th Cir. R. 34-2

Unless otherwise directed, a panel of the court shall consist of three

judges. When an appeal is assigned to an oral argument panel, at least two judges shall be judges

of this court unless such judges cannot sit because recused or disqualified or unless the chief judge

certifies that there is an emergency including, but not limited to, the unavailability of a judge of the

court because of illness. Any two judges of a panel constitute a quorum. If a judge of a panel that

has taken an appeal or matter under submission is not able to participate in a decision, the two

remaining judges, whether or not they are both judges of this court, may decide the appeal or may

request the chief judge or a delegate of the chief judge to designate another judge to sit in place of

the judge unable to participate. No further argument will be had or briefs received unless ordered.

Prior to oral argument, if a judge of an oral argument panel to which an appeal has been assigned

determines that he or she cannot sit for reasons other than recusal or disqualification, the two

remaining judges, whether or not they are both judges of this court, may hear oral argument. If the

third judge is thereafter able to participate as a panel member, the third judge may listen to the oral

argument recording and participate in the decision. If the third judge is thereafter not able to

participate as a panel member, the two remaining judges may proceed as provided in the paragraph

above.

Prior to oral argument, if a judge of an oral argument panel to which an appeal has been assigned

determines that he or she cannot sit because recused or disqualified, the two remaining judges,

whether or not they are both judges of this court, may: (1) proceed by quorum to hear oral argument

and decide the appeal; (2) return the appeal to the clerk for placement on another calendar; or (3)

request the chief judge or a delegate of the chief judge to designate another judge to sit in place of

the recused or disqualified judge. For purposes of this rule, an appeal is considered assigned to an

oral argument panel when the clerk notifies counsel of the specific day of the week on which oral

argument in the appeal is scheduled to be heard. Prior to that time, a recusal or disqualification will

ordinarily result in the appeal being transferred to another calendar.

Following the issuance of an opinion by a panel of three judges, if a judge of the panel recuses

or is disqualified, the two remaining judges, whether or not they are both judges of this court, may

proceed by quorum to take such further actions as are deemed appropriate.