BEFORE: HIGGINBOTHAM, Chief Judge, SLOVITER, BECKER, STAPLETON, MANSMANN, GREENBERG, HUTCHINSON, SCIRICA, COWEN, NYGAARD, and GARTH, Circuit Judges
SUR PETITION FOR REHEARING
Walter K. Stapleton, Circuit Judge
The petition for rehearing filed by appellee 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.
Judge Hutchinson would have granted rehearing.
Judge Cowen dissents from the denial of in banc rehearing for the reasons noted in Judge Garth's dissent to the panel opinion.
GARTH, J., dissenting from a denial of rehearing:
This appeal has called into question the jurisdiction of the federal courts to review a non-final award of an arbitrator under § 301 of the National Labor Relations Act. The majority of the panel whose decision Union Switch has petitioned to rehear, has held that we had "prudential" jurisdiction to review such an incomplete award. (Slip op. at 13.) I dissented from the panel's judgment (id. at 19) because it was crystal clear to me that the majority, in holding that we had jurisdiction, had violated our own Internal Operating Procedure 8C which proscribes creating a conflict with prior precedent. Moreover, the panel had done so in an excruciatingly sensitive area of the law -- an area involving a federal court's power to act -- its jurisdiction.
I called to the attention of the majority of the panel our holding in Public Service Electric & Gas Co. v. Systems Council U-2, 703 F.2d 68 (3d Cir. 1983) -- a holding diametrically opposed to, and at odds with, the court's holding on this appeal. The circumstances of Systems U-2 and the circumstances of this appeal are indistinguishable. Yet, in Systems U-2, our court, speaking through then Chief Judge Seitz, had held that a federal court lacked subject matter jurisdiction over an arbitrator's incomplete award -- an award deciding only liability and not damages. That precise situation obtains in the present appeal. Yet, the majority of the panel, ignoring Systems U-2, had held that indeed, we have jurisdiction.
I urged in my panel dissent, as I urge here, that we should not play fast and loose with jurisdictional issues and that any difference in philosophy, thought or jurisprudence must be resolved by this court in banc. This court has constantly striven for jurisprudential integrity, and that integrity, in my opinion, should not be undermined or diluted at the whim of, or by the decisions of, less than a majority of the full court.
I adhere to my view that the decision in this appeal is a gross departure from our self-imposed discipline (IOP 8C) -- a discipline to which this court adheres in order to preserve the integrity and value of our precedents and our jurisprudence. Because the panel majority has chosen to ignore that precept, I dissented at panel hearing, and in my dissent called for rehearing in banc. I did so in order that the full court could determine whether the holding of Systems U-2 was still viable, or, whether the holding in this case is henceforth to be followed.
I recognize that I cannot vote for rehearing in banc because as a senior judge I am precluded from doing so. I can, however, vote for panel rehearing, and I do so for the same reasons that I expressed in my panel dissent. Obviously, therefore, if I was empowered by statute to do so, I would vote for rehearing before the full court. Because I ...