The opinion
HARRISON L. WINTER, Chief
Judge, concurring:
Since a majority of the active judges voted to rehear this case in banc and since I have a duty to sit and to vote, I concur in Judge Haynsworth’s opinion. I do so reluctantly, not because I have any doubt that affirmance is proper, but because I am convinced that the case should not have been heard by the in banc court even if it was incorrectly decided by a majority of the panel.
The determination of causes by a court of appeals sitting in banc is governed by *74 Rule 35, F.R.App.P. In pertinent part, the rule is:
Rule 35. Determination of Causes by the Court in Banc
(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.
From a reading of the panel opinions and of Judge Haynsworth’s opinion for the in banc court, it is manifest that even the erroneous panel opinion did not breach the uniformity of our decisions, * nor did it involve a question of exceptional importance. At most it was a judgment call on disputed facts. It follows that if the letter and spirit of the rule were observed the case should not have been reheard in banc. The in banc court consisted of twelve judges. During the time consumed in rehearing, this case in banc, they should have sat in four panels and heard four other cases.
Judge PHILLIPS authorizes me to say that he concurs in this opinion.
I emphatically reject Judge Murnaghan's thesis that the uniformity of our decisions is breached whenever it may be argued that a panel opinion incorrectly applies a basic Supreme Court precedent. Were this view to prevail, we ought to hear or rehear every appeal in banc, notwithstanding Judge Murnaghan's disavowal to the contrary, because in every appeal there is some basic Supreme Court holding which is involved.