Seitz, Chief Judge, Adams, Gibbons, Hunter, Garth, Higginbotham, Sloviter and Becker, Circuit Judges.
SUR PETITION FOR REHEARING
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
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 ...