Franz A. Wakefield, dba CoolTVNetwork.com, Inc. v. Blackboard, Inc., et al.

A three-judge panel that includes a judge later suspended for disability cannot satisfy 28 U.S.C. § 46(b) “in the first instance.” Just as a two-member NLRB lacked authority in New Process Steel and an improperly composed appellate panel was void in Nguyen, due process and statutory law require three capable judges from the start. Therefore, the questions presented are:

1. Whether Rule 60(b)(6) requires relief where new official facts arose only after judgment and mandate and reveal a post-judgment structural due process defect in the integrity of the tribunal, and whether the equit­ able purpose of Rule 60(b) requires a uniform national standard, rather than divergent circuit approaches, when the defect alleged is structural—such as violation of 28 U.S.C. § 46(b)’s requirement that appellate cases be heard by a panel of three competent judges.

2. Whether, to obtain Rule 60(b) relief, a movant must be required to make a “non-empty exercise” (meritorious-claim or defense) threshold showing, and if so, how that showing interacts with a structural-defect claim where the core injury is denial of a fair tribunal and whether an appellate panel that includes a judge later suspended for disability, satisfies 28 U.S.C. § 46(b)’s three-judge quorum requirement and the Due Process Clause, or whether such participation creates a struc­ tural defect requiring relief under Rule 60(b)(6).

3. Whether the “reasonable time” under Rule 60(b)(6) begins at public initiation of an investigation into a judge’s capacity, or at the issuance of a definitive disciplinary order (e.g., suspension) that removes speculation and ripens the due process claim, and