UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
February 9, 1984
IDA MARY LEWIS
THE UNIVERSITY OF PITTSBURGH AND THE UNIVERSITY OF PITTSBURGH BOOK CENTER
725 F.2d 910.
Seitz, Chief Judge, Adams, Gibbons, Hunter, Garth, Higginbotham, Sloviter and Becker, Circuit Judges.
SUR PETITION FOR REHEARING
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.
By the Court
LEONARDO I. GARTH
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.*fn1 Consequently, 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 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),*fn2 a goal clearly embodied throughout our Court's Internal Operating Procedures (I.O.P.'s),*fn3 and especially emphasized by the Third Circuit's strict rule of stare decisis in I.O.P. 8C.*fn4
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 regular active service" would support our construing it to mean "judges . . . in regular active service [who are not disqualified in a particular case]."*fn5 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, 10 L. Ed. 2d 709 (1963) (quoting Western Pac. R.R. Corp., supra, note 2, 345 U.S. at 250.*fn6
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,*fn7 the Seventh,*fn8 the Eighth,*fn9 and the Ninth*fn10 -- have chosen to grant in banc reconsideration whenever favored by a majority of the nonrecused judges.*fn11
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 rulemaking 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.