RESPONDENT: Baltimore & Ohio Railroad Company
LOCATION: Clauson's Inn
DOCKET NO.: 414
DECIDED BY: Warren Court (1962-1965)
LOWER COURT: United States Court of Appeals for the Third Circuit
CITATION: 374 US 1 (1963)
ARGUED: Apr 17, 1963
DECIDED: Jun 10, 1963
Facts of the case
Media for Shenker v. Baltimore & Ohio Railroad Company
Audio Transcription for Oral Argument - April 17, 1963 in Shenker v. Baltimore & Ohio Railroad Company
Number 414, Michael Shenker, petitioner, versus Baltimore and Ohio Railroad Company.
Mr. Wright, you may proceed.
Charles Alan Wright:
Mr. Chief Justice, may it please the Court.
This is an F. E. L. A. case in which the Court of Appeals for the Third Circuit reversed a judgment for the injured employee.
It raises two questions; one, a question of federal appellate procedure, the other question of law as to the scope of the duty of the carrier under the Federal Employers' Liability Act.
Since the two questions are independent, I should like to express my view on the procedural question before stating the facts which go to the merits and to the rule of law involved.
In the Third Circuit, the judgment for the employee was reversed by vote of 2 to 1.
Judge Goodrich and Judge Ganey with the majority and Judge Kalodner dissented.
A petition for rehearing en banc was filed.
The petition for rehearing en banc comes not under Rule 33 of the Third Circuit as respondent suggests in his brief and under Rule 4 (c) of the Third Circuit which deals with their en banc procedure.
The petition was ruled denied per Goodrich and Ganey J. with four justices dissenting from the denial of rehearing, Judge Kalodner, Judge Biggs, Judge Smith and Judge Staley.
Judges Hasty and McLaughlin of the Third Circuit did not participate in ruling on the motion for rehearing.
And so as the matter stood, the vote was 4 to 2 in favor of granting rehearing but the statute, Section 46 (c) of the Judicial Code provides that rehearing en banc maybe ordered by a majority of the Circuit judges in active service.
And since there were eight judges in active service on the court at that time, the court considered that the petition for rehearing had failed to attain the necessary majority and therefore it ruled that the petition was denied.
Is there indication as to why two of the judges did not participate?
Charles Alan Wright:
There's no indication whatever, Justice Stewart.
We concede that the -- a literal reading of the statute supports what was done below.
It is true that there was not a majority of the Circuit judges in active service who voted to grant the petition.
We suggest, however, that this is a statute which had never been read literally either by this Court or any other court and it is a statute which read literally in this context, produces an absurd result.
It produces the result that one loses though two-thirds of the judges who vote on the matter who voted in one's favor.
I have endeavored, I must say without success to formulate some principle of one-judge-one-vote which might applicable to the case.
I do suggest, however, that the principle of majority rule is not a principle confined to southern primaries, but it's one which the federal courts have always followed.
I will not say that what happened below is unprecedented because there may always be a precedent which has been overlooked, but so far as I can find in following the work of the federal courts, I cannot recall any case in which a majority of the sitting judges have been held to not to have their way on a matter before the Court.
The closest case I can think of in point as the case here of In re Isserman in which in order to show cause why Isserman should not be disbarred was served upon him.
The Court divided 4 to 4 as to whether he had shown cause and this Court initially ruled that he'd failed to carry majority and he was disbarred.
But this Court then proceeded to change its rules to prevent such a result and on rehearing, permitted Isserman to remain a member of the bar.
This Court when it first construed the en banc statute, Section 46 (c) indicated that a literal reading of the statute does not require, when it suggested specifically as a possible procedure which the Circuits might follow, that they might leave it to the original panel to decide whether or not a rehearing en banc should be called for.
If one does this, then two judges can order a rehearing en banc even though the statute says a majority of the judges in active service.
Now, if we can read the statute in a non-literal sense and permit the panel to decide, it is our view that we can also read the statute in a non-literal sense and permit those judges who participate to decide.
When six judges participate or don't think rehearing should be granted that it would be entirely consistent with the purpose of the statute to order rehearing and in fact in my submission to deny rehearing on showing of this kind [Inaudible] the purpose of the statute.