stressing “need for judicial restraint in invoking the en banc mechanism”
How later courts described this case
- stressing “need for judicial restraint in invoking the en banc mechanism”
- order staying discovery, July 22, 1977
- D.C. Court of Appeals, not D.C. Circuit, is “the final expositor of local law”
Written by the judges who cited it.
The opinion
MacKINNON, Circuit Judge
(concurring).
In my opinion en banc rehearing was necessary to maintain the uniformity of our decisions.
In dissenting from the panel opinion in this case Judge Wilkey stated
this court quite logically has construed that language [of the D.C. statute of limitations] as mandating an inquiry into the “nature of the injury involved rather than to the legal theories available for its redress.” [Emphasis added.]
Footnote 3 was cited in support of this assertion, as follows:
3 District of Columbia Armory Bd. v. Volkert, 402 F.2d 215, 220 (D.C.Cir.1968). In Volkert , plaintiff sued the supplier and architect firm responsible for the construction of the D.C. stadium after defects occurred in the stadium. Although the underlying theory of liability alleged was negligence, the purpose of the action was to recover damages for injury to the property. Thus the court held that the provision “for the recovery of damages for an injury to real or personal property,” 12 D.C.Code § 301(3), stated the applicable limitation period.
The dissent takes the position that three potential claims have been suggested: First, infringement of appellant’s rights under the First and Fifth Amendments. Second, breach of a due-care duty implicit in whatever federal statute or regulation purportedly authorized the activities of the appellees. Third, common law negligence in the maintenance of government files. Yet, the purpose of each of these claims is to recover damages for defamation. Therefore, the statute of limitations applicable to actions for defamation determines whether the suit was timely filed.
The en banc court’s action affirms the district court’s dismissal of the complaint, because the activities complained of therein occurred in excess of one year before the filing of the law suit and hence plaintiff’s claim was barred by the District of Columbia one-year statute of limitations for libel. 12 D.C.Code § 301(4). (App. 60). The dissent argues that the issues presented are too unimportant for en banc consideration, and that the panel opinion therefore should be reinstated. Rehearing en banc, however, is proper to “secure or maintain uniformity of ... decisions.” F.R.App.P. 35. And since the panel decision in this case was inconsistent with Volkert , it was proper to maintain the uniformity of our decisions by reversing the panel decision on rehearing en banc.