The opinion
Nichols, Judge,
with whom Bennett, Judge, joins,
dissenting:
Respectfully, I dissent. In my view, this holding contravenes the well-known rule that no one can participate in the decision of a tribunal of which he is not a member on the effective date. That proposition will not be disputed, I suppose. It is well recognized in the practice of courts. Thus, one of our judges who voted for a decision or even prepared it would not be recognized as participating if he died before the promulgation date. It would issue on the authority of the survivors of the original panel, not that of the deceased member. In a different situation I observed the same rule at some personal inconvenience, having deferred my resignation from the Customs Court and my swearing into this court in order to permit four decisions of the former tribunal to issue and be valid. I never supposed I could resign and still have them come out under my name. Yet that is in effect what the resigned members of the Renegotiation Board are attempting to do here.
The court avoids a direct challenge to that rule by asserting that the effective date was, alternatively, February 1 or February 6. It is not denied that the statute fixes the final date for the purpose of taking appeal as the date of the order, here March 15. That is the date after which the order is "final,” 50 U.S.C. App. § 1215(a)(1), that must occur within two years after "commencement,” or any extension thereof, 50 U.S.C. App. § 1215(c), and that starts the running of interest, 50 U.S.C. App. § 1215(b)(2). The meeting and vote of February 1 is a useful and necessary preliminary, no doubt, but it is as unknown to the statute as our "decisions” conferences are to the judicial code. The court gets around this by saying that there can be two or more effective dates for different legal purposes and that the members then on the Board could authorize the order to be prepared and issued as a ministerial act. Of course, the court can conjure up any *580 number of effective dates if it chooses. No further action by the Board members was required, after February 6, and if they had remained in office, the signing and issue would indeed have been ministerial, but in my view, when done, it would have been their action, not that of the chairman alone who signed for them. With their resignations, it ceased to be ministerial. In a similar manner, in the period between our decisions conferences and our decision days, ministerial acts only are performed, namely, printing and proofreading, but still we all speak as of the date at the top of each opinion. The natural relationship of the Board’s meetings with its promulgation dates would seem to be the same as ours. The scheme the court proposes is artificial and unnatural.
In oral argument we had much theory and discussion of hypotheticals. Defendant took the view it was forced by the logic of its position to take, that after February 6 the order was final in the sense that neither the old Board, had it remained, nor the new one, if appointed before March 15, could have stopped the promulgation and taken the case under reconsideration. It certainly would have shocked the hypothetical new board to be told the chairman had orders he was about to issue, as to which they had no say. They might well have asked how an order not yet issued could be final against them when by express statutory language it was not yet final against anybody else. In a more practical vein, they might have asked how they could explain to their disappointed admirers that a secret meeting, six weeks earlier, with a procedure unpublished and unknown, that allowed only five days for concurrence or dissent, had relieved them of all responsibility for whatever errors an order might contain, that was issued after they had ostensibly become full members.
It would be better practice, I think, if preparation of the order is'as ministerial as alleged, to have it ready at or shortly after the Board votes on it, and put it out forthwith. But if situations like this are to recur, it certainly seems better to allow resignations and new appointments to have their natural and normal effect, for old members whose resignations are accepted, to cease immediately being responsible for anything done in the Board name thereaf *581 ter, and for the. new ones to be fully responsible for everything done in the name of the Board thereafter. The disturbance of this natural order of things by assigning a specious finality to a vote at a secret and unpublished meeting, seems to me as ill advised practically as it is questionable legally.
It was suggested that new members might have difficulty acquainting themselves with old cases in the necessary time, and it was apparent, if its position prevailed, plaintiff was preparing to insist on reopening this case, while holding out on agreement to necessary extensions of time. It is to be remembered, however, that due process is not required in renegotiation at the Board level. The law would, I believe, look kindly on anything the Board might deem it necessary to do to prevent limitations running. To be more specific, I would have proceeded to consider the "Ratification and Contingent Orders” referred to in Judge Kunzig’s footnote 4. We do not know what plaintiff can urge against them. I think we should have considered both sets of orders at once, but we did not. I can only say, therefore, that it would have taken a lot to convince me that the later set were invalid. As regards the practical outcome of this case, there is not much difference between the court and me, but my analysis I think would furnish a better guide for the future.