3d Cir. I.O.P. 12.1

in his or her discretion will decide whether to reconstitute the panel by naming a

substitute. Unavailability includes, but is not limited to, necessity to recuse,

disability, resignation, or death. If the chief judge is recused, the active judge next

in precedence will act. A written order is not necessary for the reconstitution of

any panel. Generally, the chief judge will exercis e his or her discretion in the

following manner:

(a) If after distribution of the briefs, but before the disposition date, a

member of a panel becomes unavailable, the judge, or one of the

remaining panel members, informs the chief judge. The c hief judge

will usually name a substitute and reconstitute the panel. The

substituted judge on any panel is open to opinion assignments on the

same basis as original panel members.

(b) If a member of a panel becomes unavailable after the disposition date

but before the opinion is filed with the clerk, the two remaining judges

will inform the chief judge of the status of the case, e.g. whether the

remaining members of the panel agree on the disposition of the case,

and whether an opinion has been drafted. The chief judge in his or her

discretion will decide whether to reconstitute the panel by naming a

substitute. A case may be decided without naming a substitute judge

if the remaining judges agree as to disposition.

(c) If the author of an opinion becomes unavailable while the opinion is

circulating to the panel or to the full court, ordinarily the opinion will

be reassigned to one of the remaining panel members if they are in

agreement. If the remaining panel members are not in agreement, the

chief judge will name a substitute judge and reconstitute the panel.

(d) If the author of an opinion or member of the panel becomes

unavailable after transmission of the opinion to the clerk, but before

the opinion is filed, the chief judge may direct that the opinion be filed

listing the unavailable judge on the coram, provided neither of the

remaining judges has authored a concurrence or dissent. Ordinarily

the opinion will be filed as a per curiam opinion but the chief judge

may in his or her discretion direct that the opinion be filed with the

unavailable judge listed as author. The clerk will note on the opinion

that it was received in the clerk's office before the panel member

became unavailable.