The opinion
On Petition for Rehearing En Banc.
SCHNACKENBERG, Circuit Judge.
1. I respectfully disagree with Chief Judge DUFFY in his ruling that retired Judge Major, of this circuit, is not qualified to vote on respondents’ petition for rehearing en banc or to sit as a part of the court on said en banc hearing, if it is allowed. I now state my views.
In a letter dated March 25,1958, Judge Duffy relies on 28 U.S.C.A. § 46 (c), and says that that section
“ * * * provides that hearing or rehearing before the Court en banc must be ordered ‘by a majority of the circuit judges of the circuit who are in active service.’ There is nothing ambiguous about that language. I do not see how it could be more clearly stated. It is only a majority of the circuit judges of the circuit who are in active service who may order a hearing or rehearing en banc.
“The statute further provides: ‘A court en banc shall consist of all active circuit judges of the circuit.’ A retired judge is not an active circuit judge merely because he volunteers for various kinds of judicial *292 duties. Again, the language is clear and unambiguous.”
However, he overlooks other relevant sections of the statute. They are 28 U.S.C.A. §§ 294 and 296, which in their present form were enacted on June 25, 1948, 62 Stat. 901 , which is the same day § 46 was enacted in its present form.
Sec. 294(b) provides that
“Any retired circuit * * * judge may be designated and assigned to perform such judicial duties in any circuit as he is willing to undertake. Designation and assignment of such judge for service within his circuit shall be made by the chief judge * *
Sec. 296 provides:
“A * * * judge shall discharge, during the period of his designation and assignment, all judicial duties for which he is designated and assigned. He may be required to perform any duty which might be required of a judge of the court * * * to which he is designated and assigned.
“Such * * * judge shall have all the powers of a judge of the court, * * * to which he is designated and assigned, except the power to appoint any person to a statutory position or to designate permanently a depository of funds or a newspaper for publication of legal notices.
“A * * * judge who has sat by designation and assignment in another district or circuit may, notwithstanding his absence from such district or circuit or the expiration of the period of his designation and assignment, decide or join in the decision and final disposition of all matters submitted to him during such period and in the consideration and disposition of applications for rehearing or further proceedings in such matters. (Emphasis supplied).”
Judge Major, being willing to undertake the judicial duties to which he was assigned, sat on the three-judge panel which decided the case at bar and he concurred in the opinion of the court and the panel’s modification of the order entered by the respondents. The designation and assignment to hear this case had not expired and will not expire until this case is finally disposed of in this court, because § 296 makes it clear that he may be required to perform any duty which might be required of a judge of this court, and certainly that would include participating in the final action on a petition for rehearing in this case. That function is included in the language of the second paragraph of § 296 which is to the effect that such a designated and assigned judge “shall have all the powers of a judge of the court * * * to which he is designated and assigned”, with certain irrelevant exceptions. Moreover, the third paragraph of § 296 is clear that, even if he were designated to sit in another circuit, neither his absence from said circuit or the expiration of the period of his designation and assignment would deprive him of the power to “decide or join in the decision and final disposition of all matters submitted to him during such period and in the consideration and disposition or applications for rehearing or further proceedings in such matters.” (Emphasis supplied.) A fortiori, Judge Major, having been designated and assigned to sit in his own circuit, the Seventh, does not have less power than if he had been designated and assigned to sit in another circuit.
We are not justified in attributing to congress an intention, by § 46, to prevent a judge, who actively sits on the panel which decides an appeal, from participating in an en banc hearing on a petition for rehearing, the object of which is to overturn a major part of the panel’s decision. A reading of both §§ 294 and 296, in conjunction with § 46, dispels any such legislative intention. The only reasonable construction which can be given to the entire pertinent legislative language, in its application to this case, is that the designation and assignment of *293 Judge Major to this ease bestowed upon him the duty of acting as a judge therein and in the consideration and disposition of such applications for rehearing as have been or will be filed therein. It would be incredible that congress intended that an experienced and capable retired judge, who voluntarily accepts an assignment to hear a case in his own circuit and in the decision of which he has joined, should be excluded from the consideration of a petition for rehearing thereof, whether or not it is to be heard by the original panel of which he is a member or the court sitting en banc. Such a result would be incongruous and contrary to common sense. The construction I urge may involve a “sacrifice of literalness for common sense.” This phrase I take from the opinion of Justice Douglas in Textile Mills Corp. v. Com’r, 314 U.S. 326, 334 , 62 S.Ct. 272, 277 , 86 L.Ed. 249 , where he said:
“ * * * any sacrifice of literalness for common sense does no violence * * *. Certainly, the result reached makes for more effective judicial administration. Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. Those considerations are especially important in view of the fact that in our federal judicial system these courts are the courts of last resort in the run of ordinary cases. Such considerations are, of course, not for us to weigh in case Congress has devised a system where the judges of a court are prohibited from sitting en bane. But where, as here, the case on the statute is not foreclosed, they aid in tipping the scales in favor of the more practicable interpretation.”
To me, the legislative intent in enacting § 46 was to prevent the overturning of a panel decision by the loading of the court on an en banc hearing by bringing in a number of retired judges who had not been members of the original panel. That intent is based upon an obviously sound purpose, but the section should not be extended beyond that objective.
The views herein expressed find support in United States ex rel. Paetau v. Watkins, 2 Cir., 164 F.2d 457 . There Justice Holtzoff of the District of Columbia was designated to sit in the District Court for the Southern District of New York. His first ruling was to amend the warrant of deportation there involved. He thereafter granted respondent’s motion for reargument, and, after further hearing changed his holding to agree with respondent and dismissed the writ of habeas corpus. It was held, at 460, that, although his designation had already expired when he granted reargument, he was the proper judge to hear same. The court in a footnote cited Frad v. Kelly, 302 U.S. 312, 316 , 58 S.Ct. 188, 191 , 82 L.Ed. 282 , where the Supreme Court said:
“When an assigned judge has presided at the trial of a cause, he is to have power, though the period of his service has expired, and though he may have returned to his own district, to perform the functions which are incidental and supplementary to the duties performed by him while present and acting in the designated district. And where a cause has been submitted to him in the designated district, after his return to his own district he may enter decrees or orders and file opinions necessary to dispose of the case, notwithstanding the termination of his period of service in the foreign district. * * * ” (Emphasis supplied.)
I believe that Judge Major is entitled to participate in this case until its final disposition in this court.
2. As to the merits of the petition of respondents for a rehearing en banc, I vote to deny said petition. It is expressly based on Moog Industries Inc., v. Federal Trade Commission, (Federal Trade Commission v. C. E. Niehoff & Co.), 355 U.S. 411 , 78 S.Ct. 377 , 2 L.Ed. 370 . However, both the respondents and Judge Parkinson in his separate opinion on the petition for rehearing filed by petitioners in the case at bar have miscom *294 prehended the significant effect of the Supreme Court’s decision in the Niehoff case. When that case was before this court the Federal Trade Commission took the position that it had no power to stay compliance with its order, relying upon a part of § 11 of the amended Clayton Act 1 and contended that it had no discretion as to the enforcement of the law. We called attention to this denial by the Commission of its power to stay its order, 241 F.2d 37 , at page 42:
“The commission takes the position that it has no power to stay compliance with its order. * * * it is our opinion that this statutory language vests in the commission power to postpone the time at which an order is to take effect.” (Emphasis supplied.)
The Supreme Court came to the same conclusion, saying, 355 U.S. 411 , at page 413, 78 S.Ct. 377 , at page 379:
“ * * * It is clearly within the special competence of the Commission to appraise the adverse effect on competition that might result from postponing a particular order prohibiting continued violations of the law. Furthermore, the Commission alone is empowered to develop that enforcement policy best calculated to achieve the ends contemplated by Congress and to allocate its available funds and personnel in such a way as to execute its policy efficiently and economically.
“The question, then, of whether orders such as those before us should be held in abeyance until the respondents’ competitors are proceeded against is for the Commission to decide. * * *” (Emphasis supplied.)
It is apparent, therefore, that the Supreme Court agreed with us that the Commission has power to postpone the date for compliance with its order and that the Commission was mistaken in its stated position that it did not have that power. That was the principal question involved in the Niehoff case, as we had held that we would affirm the Commission’s order on the merits.
In the case at bar, this court has modified the order entered by respondents, and their petition for rehearing questions our authority to do so. It is not denied that the Commodity Exchange Act in § 9 thereof authorizes this court to affirm, set aside, or modify the order of the Secretary of Agriculture. 2 We modified such an order, in disposing of Miller’s petition for rehearing, by reducing the penalties imposed on G. H. Miller and Company and Gilbert H. Miller. Respondents’ petition for rehearing en banc does not in any way explain why, in so doing, we did not thereby “modify the order”, as the act expressly authorized us to do. Respondents choose to ignore the act in this critical aspect. We conformed to it.
It would be interesting if the Commission had stated what the words “modify the order” mean. Does the Commission say that they bestow upon this court the mere power to “cross the t’s and dot the i’s” in the Commission’s order?
The respondents have shown no reason for a rehearing en banc.
Petition for Review of an order of the Secretary of Agriculture.
FINNEGAN, Circuit Judge.
Despite the caption of the printed statement published by Judge SCHNACKEN-BERG on April 16, 1958, in the above-captioned case, I have not participated in any opinion whatsoever concerning the respondent’s petition for rehearing en banc.
I am awaiting formal action by a majority of this Court on the aforesaid Petition before publicly stating my views, under an express reservation earlier made by me.
On Petition for Rehearing En Banc.
Before DUFFY, Chief Judge, and FINNEGAN, HASTINGS, and PARKINSON, Circuit Judges.
*295 PER CURIAM.
A majority of the Circuit Judges of this Circuit in active service having voted in favor of a rehearing en banc in the above entitled cause.
It is ordered, that a rehearing en banc shall be held, and said rehearing shall be limited to the question—Does the Court of Appeals have the power and jurisdiction to change a penalty fixed by respondent Secretary of Agriculture, which penalty is within the statutory limits.
It is further ordered that the briefs heretofore submitted in this cause shall be used upon the petition for rehearing, and that oral argument shall be limited to thirty minutes on a side.
. 15 U.S.C.A. § 21 .
. 7 U.S.C.A. § 9 .