Ida Mary Lewis v. University of Pittsburgh and University of Pittsburgh Book Center

SUR PETITION FOR REHEARING

Before SEITZ, Chief Judge, ADAMS, GIBBONS, HUNTER, GARTH, HIGGIN-BOTHAM, SLOVITER and BECKER, Circuit Judges.

GARTH, Circuit Judge.

The petition for rehearing filed by Appellant Ida Mary Lewis in the above entitled case having been submitted to the judges who participated in the decision of this court, and to all the other available circuit judges of the circuit in regular active service, and no judge who concurred in the decision having asked for rehearing, and a majority of the circuit judges of the circuit in regular active service not having voted for rehearing by the court in banc, the petition for rehearing is denied.

ADAMS, GIBBONS, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges, would grant the petition for rehearing.

Statement Sur Petition for Rehearing

ADAMS, Circuit Judge.

Although I do not wish to comment further on the substantive issues in this case, I am constrained to note my uneasiness about a procedural dilemma illustrated by the rejection of Ida Mary Lewis’ petition for rehearing in banc. Under the Third Circuit’s longstanding practice, a judge who is disqualified in a particular case is in effect counted as a vote against rehearing. 1 Con *929 sequently, a panel decision supported by only a small minority of our Court may, because of recusals, be insulated from reconsideration in banc.

Today, as the foregoing order reveals, two of the ten active judges on our Court have recused themselves from voting on Ms. Lewis’ petition for rehearing. Thus under Third Circuit custom, her appeal may not be reheard unless six of the eight participating judges — that is, every judge not in the original panel majority — vote to reconsider her case. The vote is only 5-3 in favor of rehearing, and so the petition is denied. To Ms. Lewis, I fear, this result of our Court’s in banc voting rule must appear quite unfair.

The main reason for our procedure is that it insures that major developments in the law of the Circuit reflect the participation of all members of the Court. If, for example, five of the ten judges are disqualified from a particular case, our rule absolutely precludes reconsideration of the panel decision. Were the rule otherwise, we could grant a petition for rehearing favored for example by a vote of 3-2. Then the “in banc” panel would consist of only five judges and the settled law of our Circuit could be overturned by as few as three members of the Court. Such a result would be at odds with the goal of intracircuit uniformity underlying Congress’ decision to authorize in banc proceedings, see H.R.Rep. No. 1246 (to accompany H.R. 3390), 77th Cong., 1st Sess. (1941); Hearings on S. 1053 Before a Subcommittee of the Senate Judiciary Committee, 77th Cong., 1st Sess. 14-16 (1941), 2 a goal clearly embodied throughout our Court’s Internal Operating Procedures (I.O.P.’s), 3 and especially emphasized by the Third Circuit’s strict rule of stare decisis in I.O.P. 8C. 4

Our approach, however, is by no means required by the wording of the in banc statute, 28 U.S.C. § 46 (c) (Supp. V 1981), or by the Supreme Court’s interpretation of that statute. Indeed, a straightforward parsing of § 46(c) arguably suggests that disqualified judges should not be counted in determining what constitutes a majority vote for rehearing. The in banc statute provides in relevant part:

Cases and controversies shall be heard and determined 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.

28 U.S.C. § 46 (c) (Supp. V 1981) (emphasis added). Presumably, the drafters of § 46(c) intended that “judges ... in regular active service” have the same meaning both times it is used. Since a court in banc cannot include recused judges, a consistent interpretation of the phrase “judges ... in *930 regular active service” would support our construing it to mean “judges ... in regular active service [who are not disqualified in a particular case].” 5 But despite the logical force of this construction, the Supreme Court has declined to endorse a particular view of § 46(c), holding instead that each Court of Appeals “is left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing.” Shenker v. Balt. & Ohio R.R. Co., 374 U.S. 1, 5 , 83 S.Ct. 1667, 1670 , 10 L.Ed.2d 709 (1963) (quoting Western Pac. R. R. Corp., supra, note 2, 345 U.S. at 250, 73 S. Ct. at 657). 6

Until recently, most Courts of Appeals followed the same in banc vote-counting rule that our Court employs. Of late, however, a new trend has developed. As of now, four circuits — the Fourth, 7 the Seventh, 8 the Eighth, 9 and the Ninth 10 — have chosen to grant in banc reconsideration whenever favored by a majority of the non-recused judges. 11

While I acknowledge that sound reasons have been advanced to support this new trend, I am not persuaded that it represents the ideal accommodation of the conflicting demands of fairness to the individual litigant and stability in a circuit’s decisional law. Whatever may be the best solution, I believe that the current lack of uniformity among the circuits on this important issue creates the appearance of rights determined by happenstance. Accordingly, though I do not advocate that our Court use its rule-making power to follow the new trend, I do record my concern with the intercircuit conflict over the rules for granting in banc reconsideration and express the thought that Congress or the Supreme Court should provide definitive guidance at an early occasion.

. The Third Circuit’s published rule requires that “rehearing in banc shall be ordered only upon the affirmative votes of a majority of the circuit judges of this court in regular active service.” Internal Operating Procedure 9B(4). By well-established custom, our Court has in *929 terpreted this rule to mean that participating as well as recused judges be counted in determining the number of judges constituting a majority. See Maris, Hearing and Rehearing Cases in Banc, 14 F.R.D. 91 , 95 (1953).

. Congress did not enact the in banc statute, 28 U.S.C. § 46 (c), until 1948, seven years after the legislative materials cited in the text. But as the Supreme Court explained in Western Pac. R.R. Corp. v. W. Pac. R.R. Co., 345 U.S. 247, 251-57 , 73 S.Ct. 656, 658-61 , 97 L.Ed. 986 (1953), the subsequent history of § 46(c) reveals no change in the purpose of the in banc statute after its original introduction in 1941, and therefore it is appropriate to look to these older legislative materials.

. The I.O.P. introductory explanation of policy makes clear that our Court’s procedures are designed:

1. To insure the opportunity for contributions by every active member of the court to every decision of precedential or institutional significance.

2. To insure decisional stability of the court by providing a means for the panel system to operate efficiently and at the same time provide that a published opinion of the court expressed by a panel may not be overruled without the approval of a majority of the full court.

I.O.P.’s at iii.

. I.O.P. 8C provides:

It is the tradition of this court that reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court in banc consideration is required to overrule a published opinion of this court.

. This construction is reinforced by the fact that § 46(c), as originally drafted in 1941, distinguished between the two usages of “active judge”: “the majority of the circuit judges may provide for a court of all the active and available circuit judges of the circuit to sit in banc....” See H.R.Rep. No. 1246 (to accompany H.R. 3390), 77th Cong., 1st Sess. (1941).

. Because Shenker was decided some 11 years before Congress imposed a strict new rule of disqualification codified at 28 U.S.C. §§ 455 (b)(4), (d)(4) (1976), it might be appropriate for the Supreme Court to re-evaluate ShenkePs broad grant of discretion to interpret § 46(c). That provision was enacted in an era when recusals were far less common, and when Congress probably could not have foreseen the effect of frequent recusals on the in banc voting procedure. So far, however, the Supreme Court has chosen not to re-examine § 46(c)’s interpretation by the circuits. See In re American Broadcasting Companies, — U.S. —, 104 S.Ct. 538 , 78 L.Ed.2d 718 (1983) (denying writ of mandamus to compel rehearing in banc after the Sixth Circuit refused a rehearing, despite a 5-4 vote by participating judges in favor of an in banc with one recusal).

. Arnold v. Eastern Air Lines, 712 F.2d 899 , 901-906 (4th Cir.1983), cert. denied, — U.S. —, 104 S.Ct. 703 , 79 L.Ed.2d 168 (1984).

. Announcement of Amended Seventh Circuit Operating Procedures (April 18, 1983) (“A simple majority of the voting active judges is required to grant a rehearing”).

. Eighth Circuit Local Rule 16(a) provides in relevant part:

A majority of the judges ... who are not disqualified in the particular case or controversy may order a hearing or rehearing en banc.

. Ford Motor Co. v. FTC, 673 F.2d 1008 , 1012 n. 1 (9th Cir.1981) (Reinhardt, J., dissenting on other grounds). Significantly, under the Ninth Circuit’s “limited” en banc rule, only 11 of the 23 active members of that Court sit on an en banc panel. Therefore, unlike our Court where participation by all ten active judges is the norm, en banc decisions in the Ninth Circuit are necessarily the product of a minority of that Court’s members.

. For a recent discussion of this trend, see Harper, The Breakdown in Federal Appeals, 70 A.B.A.J. 56 (Feb. 1984).