In looking for something to write about today, I happened across Local Rule 9.2, which governs requests for a "Three-Judge District Court":
RULE 9.2. Request for Three-Judge District Court.
If a party believes a civil action or proceeding must be heard by a three-judge district court, the notation “Three-Judge District Court Requested” or the equivalent shall be included on the front page immediately following the title of the first pleading filed in such action or proceeding. The basis for the request shall be set forth in the pleading or in a brief statement attached thereto. The words “Three-Judge District Court Requested” or the equivalent on a pleading is a sufficient request under 28 U.S.C. § 2284.
In more than 15 years of practice in D. Del., I've never seen someone request a three-judge panel in district court. But this rule made me say "huh," and wonder when a party can request such a panel.
It looks like the answer is: not often. The most recent such request that I found was made in a bankruptcy appeal, and Judge Andrews easily denied it, implying that a party can get a three-judge panel only under the narrow circumstances listed in 28 U.S.C. § 2284:
ORAL ORDER: Upon consideration of appellants request . . . , it is hereby ORDERED that: (1) appellants request for appointment of a three-judge panel pursuant to D. Del. LR 9.2 is DENIED as the appeal does not meet the requirements for such relief under 28 U.S.C. section 2284 . . . . Ordered by Judge Richard G. Andrews on 9/11/2023.
In Re: TK Holdings, Inc., C.A. No. 23-738-RGA (D. Del. Sept. 11, 2023).
Judge Noreika said something similar when a pro se plaintiff tried this in an employment discrimination action:
Three Judge Panel. Plaintiff requests a “Three-Judge District Court” pursuant to Local Rule 9.2 and 28 U.S.C. § 2284. . . . Pursuant to § 2284, “[a] district court of three judges shall be convened when otherwise required by Act of Congress, or when an action is filed challenging the constitutionality of the apportionment of congressional districts or the apportionment of any statewide legislative body.” Upon review of Plaintiff’s complaint, which asserts employment discrimination, this Court concludes that the convening of a three-judge panel under 28 U.S.C. § 2284 is not required.
Parker v. Agent Manager John Felton, C.A. No. 21-1678-MN (D. Del. May 11, 2022); see also Maheswar Mikkilineni v. PayPal, Inc., C.A. No. 20-647-CRC-SRF (D. Del. July 7, 2020) (Judge Fallon denying a request for three-judge panel in pro se action asserting various claims).
Helpfully, the Congressional Research Service published an article just last year summarizing the issue. They point out that the statute says that one of the three judges must be a circuit judge, and that the case is still handled by a single judge up until trial. They also list some of the circumstances where statutes permit a three-judge panel—none of which look like issues I'd expect to come up often in Delaware.
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