Although 28 U.S.C. § 46(c) provides that a retired circuit judge
may sit on an in banc court rehearing a case in which he
participated at the original hearing, only regular active service
circuit judges are vested with authority to vote whether to rehear
a case in banc.
PER CURIAM.
Appeals from the judgments of the trial courts in two cases were
heard and determined by two separate three-judge divisions of the
Court of Appeals for the Fourth Circuit. Sitting by designation as
members of each of the divisions were senior judges of the Fourth
Circuit. [
Footnote 1] Following
decisions by both divisions, the unsuccessful parties petitioned
for rehearings in banc pursuant to 28 U.S.C. § 46(c): [
Footnote 2]
"Cases and controversies shall be heard and determined
Page 417 U. S. 623
by a court or division of not more than three judges, unless a
hearing or rehearing before the court in banc is ordered by a
majority of the circuit judges of the circuit
who are in
regular active service. A court in banc shall consist of all
circuit judges in regular active service. A circuit judge of the
circuit who has retired from regular active service shall also be
competent to sit as a judge of the court in banc in the rehearing
of a case or controversy if he sat in the court or division at the
original hearing thereof."
(Emphasis added.)
It had been the practice of the Fourth Circuit to count the
votes of their senior judges who were members of the original
hearing division when the court acted on the question whether to
order a rehearing in banc. In those cases, however, the votes of
the senior judges were not crucial. Certificate 3. Here, their
votes are crucial. In
Moody, while a "majority of the
circuit judges of the circuit who are in regular active service"
did not vote for a rehearing in banc, the two senior judges who sat
on the division by designation did so vote; their votes, if
counted, would make a majority for rehearing. In
Williams,
while a majority of Circuit Judges in regular active service did
vote for a rehearing in banc, the senior judge who sat on the
original division by designation
Page 417 U. S. 624
voted against rehearing; with his vote counted the rehearing
would fail by an equal division of those voting.
Accordingly, all Circuit Judges of the Fourth Circuit in regular
active service and both senior judges of the Circuit have, pursuant
to 28 U.S.C. § 1254(3), certified to us the question whether a
senior judge of the circuit who was a member of the original
division hearing a case may vote to determine whether the case
should be reheard in banc. Because of the importance of the
question to the administration of judicial business in the
circuits, as well as to the parties in the two cases pending in the
Fourth Circuit, we granted leave to and invited those parties to
file briefs in response to the question certified. Upon
consideration of the question and the briefs filed by the litigants
on both sides of both pending cases, we conclude that the answer
should be in the negative; senior circuit judges who are members of
the originally assigned division hearing a case are not authorized
by Congress to participate in the determination whether to rehear
that case in banc.
The power of courts of appeals to hear or rehear cases in banc
was first determined in
Textile Mills Corp. v.
Commissioner, 314 U. S. 326
(1941). In 1948, Congress provided legislative ratification of
Textile Mills by enacting § 46(c) of the Judicial Code,
which then provided that hearings or rehearings before courts of
appeals in banc were to be:
"ordered by a majority of the circuit judges of the circuit
who are in active service. A court in banc shall consist
of all active circuit judges of the circuit."
28 U.S.C. § 46(c) (1952 ed.). (Emphasis added.)
In the
Western Pacific Railroad Case, 345 U.
S. 247 (1953), the Court had occasion to construe the
1948 statute, and determined that it was a grant of
Page 417 U. S. 625
power to the courts of appeals to order hearings or rehearings
in banc, not the creation of a right in litigants to compel such
hearings or rehearings or even to compel the court to vote on the
question of hearing or rehearing. The Court also addressed itself
to the procedure governing the exercise of this power, holding that
each court of appeals was "left free to devise its own
administrative machinery to provide the means whereby a majority
may order such a hearing." [
Footnote 3]
Id. at
345 U. S. 250.
This discretion has been subsequently confirmed.
Shenker v.
Baltimore & Ohio R. Co., 374 U. S. 1,
374 U. S. 5
(1963);
United States v. American-Foreign S.S. Corp.,
363 U. S. 685,
363 U. S. 688
(1960).
In one of these latter cases,
American-Foreign, a
question arose under the language of the 1948 statute whether, if
rehearing in banc was voted, senior judges were eligible to
participate in the decision of that case on the merits. The Court
held that senior judges were not eligible to sit. Congress in 1963
then enacted the present version of § 46(c), which provides that a
senior judge who sat on the original division hearing a case is
"competent
to sit as a judge of the court in banc" in the
merits rehearing of the case. (Emphasis added.)
Page 417 U. S. 626
But the language of the statute concerning how the court
orders a rehearing in banc was not changed, except to
reinforce the limitation on the grant of power by adding "regular"
before "active service," sharpening the definition of which judges
may participate in ordering a hearing or rehearing in banc.
The language of the present statute thus confines the power to
order a rehearing in banc to those circuit judges who are in
"regular active service." Although, as the Court has held, those
judges are largely free to devise whatever procedures they choose
to initiate the process of decision to order such a rehearing, and
to decide who may participate in those preliminary procedures,
see n 3,
supra, neither the Court nor Congress has suggested that
any other than a regular active service judge is eligible to
participate in the making of the decision whether to hear or rehear
a case in banc. Obviously such a decision can be reached only by
voting. As revealed by the decisional and statutory evolution of
the institution of the in banc court, the eligibility of senior
judges for participation therein has been the exception, not the
rule. We are not at liberty to engraft upon the statute a meaning
inconsistent with its historical limitations.
Indeed, the very purpose of the in banc court supports our
conclusion that senior judges have not been authorized by
implication to participate in ordering a hearing or rehearing in
banc. As the Federal Rule indicates,
supra, n 2, the in banc court is normally reserved
for questions of exceptional importance, or to secure or maintain
uniformity of decision within the circuit. In the wise use of this
exceptional power to "
determine the major doctrinal trends of
the future'" for a particular circuit, American-Foreign,
363 U.S. at 363 U. S. 690,
Congress appears to have contemplated the need for an intimate and
current working knowledge of, among other
Page 417 U. S. 627
things, the decisions of the circuit, its pending cases, and the
magnitude and nature of its future workload. Senior judges provide
a judicial resource of extraordinary value by their willingness to
undertake important assignments "without economic incentive of any
kind."
Id. at
363 U. S. 688
n. 4. Consistent therewith, Congress has provided that, when a
senior judge has participated in the original division hearing,
such senior judge may later sit on an in banc court rehearing that
case; this was the purpose of the 1963 amendment to the Judicial
Code. But voting on the merits of an in banc case is quite
different from voting whether to rehear a case in banc, which is
essentially a policy decision of judicial administration. Congress
vested this latter authority and responsibility exclusively in
"circuit judges of the circuit who are in regular active service,"
28 U.S.C. § 46(c); because of their different nature, we cannot
assume the grant of authority to do one includes authority to do
the other.
The question certified to us is therefore answered in the
negative. [
Footnote 4]
MR. JUSTICE POWELL took no part in the consideration or decision
of this case.
[
Footnote 1]
The Court of Appeals for the Fourth Circuit is composed of seven
judges in regular active service, 28 U.S.C. § 44, and two judges
who have retired from that service but remain available for duties
as designated and assigned, known as senior judges, 28 U.S.C. §
294(b). In
Moody v. Albemarle Paper Co., both of those
senior judges were designated members of the three-judge division
which originally decided that appeal,
see 474 F.2d 134; in
Williams v. Albemarle City Board of Education, one of the
senior judges was so designated,
see 485 F.2d 232; 28
U.S.C. § 294(c).
[
Footnote 2]
Federal Rule App.Proc. 35 provides in part:
"(a)
When Hearing or Rehearing in Banc Will Be Ordered.
A majority of the circuit judges who are in regular active service
may order that an appeal or other proceeding be heard or reheard by
the court of appeals in banc. Such a hearing or rehearing is not
favored, and ordinarily will not be ordered except (1) when
consideration by the full court is necessary to secure or maintain
uniformity of its decisions, or (2) when the proceeding involves a
question of exceptional importance."
"(b)
Suggestion of a Party for Hearing or Rehearing in
Banc. A party may suggest the appropriateness of a hearing or
rehearing in banc. The clerk shall transmit any such suggestion to
the judges of the court who are in regular active service but a
vote will not be taken to determine whether the cause shall be
heard or reheard in banc unless a judge in regular active service
or a judge who was a member of the panel that rendered a decision
sought to be reheard requests a vote on such a suggestion made by a
party."
[
Footnote 3]
The machinery devised by the Ninth Circuit in that case was one
which governed the initiation of the polling of the court to
determine whether it should hear or rehear a case in banc. Although
there was some uncertainty whether indeed the Ninth Circuit had
provided such machinery,
345 U. S. 247,
345 U. S. 263,
its nature was to delegate to the three-judge division first
hearing the case the power to initiate a poll of the court.
Id. at
345 U. S. 259.
Two of the judges who were members of the division in that case
were district judges.
Id. at
345 U. S. 263.
This machinery was similar in kind to that now set forth in
Fed.Rule App.Proc. 35(b),
supra, n 2, by which a vote to hear or rehear a case in banc
will not be taken unless such a vote is requested by a judge in
regular active service, or a judge who was a member of the division
that rendered a decision sought to be reheard.
[
Footnote 4]
The only other courts of appeals which have discussed the issue
have ruled similarly.
Zahn v. International Paper Co., 469
F.2d 1033, 1040 1042 (CA2 1972) (statements and dissent upon denial
of rehearing in banc);
Allen v. Johnson, 391 F.2d 527, 532
(CA5 1968) (in banc).
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