SUR PETITION FOR REHEARING
Present: SEITZ, Chief Judge, and ALDISERT, ADAMS, GIBBONS, HUNTER, WEIS, GARTH, HIGGINBOTHAM, SLOVITER and BECKER, Circuit Judges, and RE, Chief Judge.*fn*
The petition for rehearing filed by Appellant Geraghty, et al. in the above entitled case having been submitted to the judges who participated in the decision of this court and to all 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.
Judge Adams would grant the petition for rehearing.
Statement by Judge Adams sur the denial of the petition for rehearing.
I dissent from the denial of rehearing in this case. Without addressing the merits of the panel's conclusions on the constitutionality of the Parole Commission and Reorganization Act (PCRA) as applied, I believe that the opinion, in key passages, is inconsistent with prior decisional law of this Circuit and should therefore be resolved by this Court as a whole. In particular, the interpretation of the PCRA in the opinion runs counter to the discussion in Geraghty v. U.S. Parole Commission, 579 F.2d 238, 259 (3d Cir. 1978).The treatment by the earlier panel of the constitutional issues raised by the Parole Commission's assumption of traditional judicial functions was left untouched by both the Supreme Court's vacatur of Geraghty 445 U.S. 338 (1980), as well as by its opinion reversing this Court in United States v. Addonizio, 442 U.S. 178 (1979).In the latter, the Supreme Court specifically limited its discussion to the collateral habeas attack rather than to a direct constitutional challenge, as is present here. Equally significant, the ruling in Geraghty was specifically reaffirmed just four months ago in Forman v. McCall, 709 F.2d 852 (3d Cir. 1982).
Because of the disparity between these opinions of this Court, I believe this case should be considered in banc as required by the Internal ...