circuit judge, now the chief judge of the circuit, is brought into the procedure and plays a decisive part.
The amendments effected by the Act of April 6, 1942, 56 Stat. 198-9, are not pertinent and for that reason they are not set out or discussed here.
The final pertinent changes to the procedure for selecting three-judge courts were effected by Section 2284 of Title 28 of the United States Code which as presently constituted was enacted in 1948 as a complete revision of the prior statutes on the subject. The provisions of Section 2284 are, of course, substantive law but there are no substantial differences between the provisions of Section 2284 as it presently exists and those of Section 3 of the Act of August 24, 1937, 50 Stat. 752. The relevant portions of Section 2284 are as follows: 'Three-judge district court; composition; procedure. In any action or proceeding required by Act of Congress to be heard and determined by a district court of three judges the composition and procedure of the court, except as otherwise provided by law, shall be as follows:
'(1) The district judge to whom the application for injunction or other relief is presented shall constitute one member of such court. On the filing of the application, he shall immediately notify the chief judge of the circuit who shall designate two other judges, at least one of whom shall be a circuit judge. Such judges shall serve as members of the court to hear and determine the action or proceeding.'
The second paragraph quoted, under '(1)' supra, must be read in the light of and must be deemed to be modified and governed by the first paragraph quoted. On the filing of the application to the district judge, when a proceeding has been filed which requires a three-judge court for its adjudication, the district judge must notify the chief judge of the circuit that there is a case which has the legal status specified by the statute. The district judge performs an act of judicial judgment and concludes as a matter of law that the pending case is one requiring three judges for its adjudication. He then notifies the chief judge of his decision and requests the chief judge to designate the two other judges who shall sit with him. The second paragraph quoted, '(1)', supra, provides that the district judge 'shall' do these things when the proceeding requires it. It can be said with certainty that the district judge's functions in this regard are judicial rather than ministerial. See Bailey v. Patterson, 369 U.S. 31, 82 S. Ct. 549, 7 L. Ed. 2d 512 (1962), and Turner v. City of Memphis, 369 U.S. 350, 353-354, 82 S. Ct. 805, 7 L. Ed. 2d 762 (1962).
A narrow reading of the second paragraph of Section 2284 '(1)' as quoted would require that the district judge 'on the filing of the application' 'shall' 'immediately notify the chief judge of the circuit.' This would reduce the course to be followed by the district judge to mere ministerial action. But it has been demonstrated in the preceding paragraph that his notifying of the chief judge requires the exercise of a judicial act on his part. He performs that act in the light of the record paragraph quoted. A narrow reading of the second paragraph, '(1)', would require the chief judge forthwith and in all events to designate two other judges. Again the word employed by Congress is 'shall': i.e. the chief judge, on receiving the request of the district judge for a three-judge court, the notification, 'shall designate two other judges.' But this is too narrow a reading. The chief judge must perform his function in the light of the first paragraph of Section 2284 quoted above: i.e., he must, as a judicial act determine that the proceeding or case in which the three-judge court is sought to be invoked, is actually one requiring adjudication by a three-judge tribunal. There, therefore, must be two judicial acts performed before a three-judge court may be constituted: the first by the district judge; the second by the chief judge of the circuit.
The constituting of a three-judge court requires two separate acts of judicial judgment as indicated, neither merely ministerial. This conclusion, if it be correct, should effect a saving in the time and energy of litigants, of counsel and of judges.
I conclude for the reasons heretofore stated that this is not a case which requires a three-judge court to adjudicate it. I therefore decline to designate two judges to sit with the judge to whom the application for a three-judge court was made. If I am in error the remedy, I think, should be by way of a writ of mandamus directed by the Supreme Court to me as the chief judge of the circuit. If the district judge to whom the application was made should agree with the view expressed in this opinion I can perceive no reason why he cannot now rescind the request he made to me for a three-judge tribunal, Eastern States Petroleum Corporation v. Rogers, 105 U.S.App.D.C. 219, 265 F.2d 593, 597 (Prettyman, Ch. J., D.C.Cir., mandamus denied, 361 U.S. 805, 80 S. Ct. 93, 4 L. Ed. 2d 56 (1959), and, having done so, proceed to dispose of the case precisely as he would have done had he determined in the first instance that the case at bar was not one requiring the interposition of a three-judge tribunal.
An alternative course for me to pursue in order to avoid a possible mandamus would be for me to designate forthwith two judges to sit with the district judge to whom the application for a three-judge tribunal was made in this case. If it appeared to the district court as thus constituted that the cause was one not cognizable by a three-judge tribunal, the court could then dissolve itself as a three-judge district court and remit the case to the single judge to whom the application was made for his sole disposition. That this practice is permissible is, I think, well established. See Two Guys from Harrison-Allentown, Inc. v. McGinley, 266 F.2d 427, 432-433 (3 Cir. 1959). But if the appeal was to the Court of Appeals of this Circuit and the case is in reality one which is cognizable only by a three-judge tribunal, the Court of Appeals could decide only the very limited issue as to whether or not it had jurisdiction to entertain and adjudicate the appeal and could only vacate an improvident order of the single district judge tribunal as was done in the Two Guys case, supra. Such a course would hardly prove helpful here. If the case now pending in the district court is in fact a three-judge case and the district judge had refused to request me, as chief judge of the circuit, to designate two additional judges to constitute a three-judge tribunal, relief to the suitor would be by way of mandamus directed to the district judge from the Supreme Court of the United States. The waste of the time and energy of litigants, of counsel and of judges will occur in those cases where no appeal is taken until after the case is tried and where constitutional issues involving federal or state statutes are at issue. The waste of time and energy may be very considerable for the trial court may reach a final judgment only to discover later that it was without jurisdiction to determine the case. The case at bar, of course, has not been tried.
On consideration of all of the factors and being of the opinion that the chief judge of the circuit has the duty to determine judicially whether the case is one which is adjudicable by a three-judge tribunal, as had the district judge to whom the application is made, I conclude, with all respect and esteem for the District Judge who made the request of me, that the action is not one cognizable by a three-judge tribunal, and further that the ends of justice would be best served by my declining to designate two additional judges to complete a three-judge tribunal in this case. See Kirk v. Board of Education, 236 F.Supp. 1020 (D.C.E.D.Pa. 1964). Consequently, an order to that effect will be filed in the district court concurrently with this opinion.