Generally, you can ask a judge to change her mind, but you can’t ask her to change a different judge’s mind.  For example, at the trial-court level, a judge can revise her own interlocutory order under Rule 54(b), but one superior court judge may not overrule another.  Likewise, at the appellate level, a Court of Appeals panel can grant a petition for rehearing and issue a revised or different opinion, but one panel may not decide the same issue differently than an earlier panel in the same (or a different) case.

What happens, though, when the composition of a panel changes after the opinion is issued?  After all, judges retire.  Their terms end.  They move across the street to the Supreme Court.   Can the remnant of the original panel change its mind?  Can additional judges be added to fill the panel’s open seats, and can that reconstituted panel change its mind?  Does it matter if it’s one substitution, or two, or three?

These are not hypothetical questions.  In Taylor v. Bank of America, the trial court dismissed plaintiffs’ complaint because the statute of limitations had run on their claims.  On 31 December 2020, a Court of Appeals panel consisting of Judges Young, Dillon, and Berger unanimously affirmed in an opinion authored by Judge Young, holding that the fatal limitations defect was plain on the face of the complaint.

It was not a coincidence that the opinion was issued on the last day of the calendar year, as that was Judge Young’s and Judge (now Justice) Berger’s last day in office.  But, as a result, when plaintiffs then filed a petition for rehearing under Appellate Rule 31, there was only one member of the original panel left on the Court of Appeals.

Two replacement jurists were added to the panel.  The reconstituted panel promptly granted the petition for rehearing.  And earlier this month, the panel issued an opinion reaching a different result than did the first panel, reversing and remanding with instructions for the trial court to enter further findings of fact and conclusions of law supporting its decision.  The sole remaining member of the original panel—Judge Dillon—dissented, setting forth a similar analysis to that employed by Judge Young in the original opinion.

So: did the “panel” change its mind, which is certainly allowed, or did a separate panel overrule the first one, which may not be allowed?  I’m not aware of any case that answers this question directly.  Of course, under In re Civil Penalty, “Where a panel of the Court of Appeals has decided the same issue, albeit in a different case, a subsequent panel of the same court is bound by that precedent, unless it has been overturned by a higher court.”  That rule, though, applies to panels in different cases.

Lesser known is a related case that In re Civil Penalty itself cites: North Carolina National Bank v. Virginia Carolina Builders.  In that case, the trial court set aside a default judgment—a classically non-immediately-appealable interlocutory order.  The plaintiff appealed anyway, and also filed a pre-docketing petition for writ of certiorari.  A panel of the Court of Appeals denied the petition.  But once the appeal “of right” was fully briefed, the merits panel reached a different result, exercising its discretion to review and reverse the order setting aside the default judgment.

On appeal from a dissent, the Supreme Court held that the merits panel had improperly overruled the petitions panel in the same case.  The Court’s reasoning warrants quoting in full:

[O]nce a panel of the Court of Appeals has decided a question in a given case that decision becomes the law of the case and governs other panels which may thereafter consider the case. Further, since the power of one panel of the Court of Appeals is equal to and coordinate with that of another, a succeeding panel of that court has no power to review the decision of another panel on the same question in the same case. Thus the second panel in the instant case had no authority to exercise its discretion in favor of reviewing the trial court’s order when a preceding panel had earlier decided to the contrary.

Our decision on this point in no way impinges on the power of this Court or the Court of Appeals to change its ruling upon a motion to rehear, or on the court’s own motion, if the court determines that its former ruling was clearly erroneous. In the case of the Court of Appeals, however, such a change must be made, if at all, by the same panel which initially decided the matter. Otherwise, a party against whom a decision was made by one panel of the Court of Appeals could simply continue to press a point in that court hoping that some other panel would eventually decide it favorably, as indeed the plaintiff did in this case; and we would not have that orderly administration of the law by the courts.

Of course, the Supreme Court’s opinion does not directly answer the question of whether and when one panel becomes another.  It also leaves open the possibility that the original petitions panel could have overruled itself.  In the Taylor case, though, the original merits panel could not have changed its mind, because two of the judges no longer held the same office.  If the Court of Appeals is powerless to reconstitute a panel when a judge or judges leave, then parties would appear to have no way to obtain relief via a Rule 31 petition for rehearing.

There’s also one more tidbit to consider:  the word “panel” never appears in Rule 31.  Rather, the Rule speaks to “the court’s” power to rehear a case.  And here, the court plainly did believe it had this power.

In the end, this question is a bit of a Rorschach test.  What do you see when you look at the reconstituted panel?  Is it the same ship with a few planks restored?  Or is it a new ship altogether?

–Matt Leerberg