United States v. American-Foreign Steamship Corporation – Oral Argument – April 25, 1960 (Part 1)

Media for United States v. American-Foreign Steamship Corporation

Audio Transcription for Oral Argument – April 25, 1960 (Part 2) in United States v. American-Foreign Steamship Corporation

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Earl Warren:

Number 138, United States, Petitioner, versus American-Foreign Steamship Corporation, et al.

Mr. Elman.

Philip Elman:

Mr. Chief Justice may it please the Court.

This case is here on certiorari to the Second Circuit.

The problem concerns the proper composition of a Court of Appeals when it decides a case en banc, as distinguished from a three-judge division or panel.

And the question is whether Section 46 (c) of Title 20-A which is set out in the Government’s brief beginning at the bottom of page 2 whether that Section which defines the composition of a court en banc as consisting of all active circuit judges of the circuit.

Whether that Section precludes a circuit judge, who retires after a case has been submitted to the Court of Appeals en banc while the case is still under advisement under consideration.

Whether he is precluded under the statute from participating in the decision of the case because it is retirement which in this particular instance occurred some five months before the case was decided.

William J. Brennan, Jr.:

Was he active at the time that the Court took proceeding?

Philip Elman:

Yes, Mr. Justice, he was.

Now, the —

William J. Brennan, Jr.:

Now I suppose he participated in oral argument, did he?

Philip Elman:

The case was not — the case was not heard on oral argument before the court en banc.

The oral argument was before the three-judge panel.

And the case was submitted on the briefs to the en banc before it.

Now, before going in to the details of the facts, I think, it might be helpful to the Court to have in mind the exact language of the statutory provision governing en banc proceedings of the Courts of Appeals.

Earl Warren:

Mr. Elman, before I get to that may I ask, was there any formal assignment of — of the judge to — to act in this case after he retired?

Philip Elman:

I don’t believe so.

So far as — so far as the records of the court — clerk’s office and record in this case are concerned, there is no designation in assignment and we don’t think it makes any difference.

Earl Warren:

I was going to ask —

Philip Elman:

We’re willing to — we’re willing to assume that if it were proper for the retired judge in this case to participate in the decision en banc, if he did have a designation in assignment, we’re willing to assume that such a designation was made.

So, if we make absolutely no contention based upon the absence of the designation or assignment so far the en banc —

— you put that entirely clearly if Judge Clark had given the judgment being a formal designation.

Philip Elman:

The day he retired.

You still would say he would be disqualified.

Philip Elman:

Yes, sir.

And the reason — the reason we say that, is that Section 46 (c), we think in terms made Judge Medina from the date of his retirement incompetent to sit in an en banc court as distinguished from a three-judge panel court.

Now, Section 46 (c) set out on page two of our brief at the bottom provides that cases in controversy shall be heard and determined by court or division of not more than three judges, unless a hearing or rehearing before the court en banc is ordered by a majority of the circuit judges of the circuit who are in active service.

Now, that latter clause was before the Court in the Western Pacific Railroad case which was here several terms ago and the Court held there that the statute is a grant of power to the Courts of Appeals to sit en banc.

It does not prescribe any particular procedure which the Courts of Appeals must follow in determining whether a rehearing en banc should be ordered.

Philip Elman:

It doesn’t require that a petition for rehearing be filed and so on.

The only limitation so far as the Court of Appeals’ power to sit en banc is concern or in determining whether to sit en banc, is that the hearing or rehearing must be ordered by a majority of the circuit judges of the circuit who are in active service.

And then comes the sentence which we think is dispositive here.

Finding the composition of the en banc court if it does decide to sit that way, a court en banc shall consist of all active circuit judges of the circuit.

Now, there’s no problem here about Judge Medina’s being a circuit judge.

There’s no problem about his being a Circuit Judge of the Second Circuit.

The keyword there is “active”.

He was active when the case was submitted to the court en banc, he was retired when the case was decided.

The statute says cases and controversy shall be heard and determined by a court as defined.

The Government’s position in a nutshell is that the court en banc must be properly constituted not only at the time the case is heard but at the time it’s determined.

And that Judge Medina at the time the case was determined by the court en banc was not an active circuit judge of the circuit.

And for that reason, the judgement entered by that improperly constituted en banc court was invalid.

In other words, you read over into the last sentence, occurred and determined by the —

Philip Elman:

Yes, sir we do.

But even if — even if that’s — even if the language heard and determined wasn’t specifically on the statute.

We would — we would not think that would make to — too much of a difference because after all the function of a court, the one function of a court to which everything else is ancillary is the function to decide.

That’s why a court exists and the crucial action of the Court is the decision and Congress granted the power of the Court of appeals to sit en banc and to decide cases en banc and it entrusted that power only to all active circuit judges of the circuit.

Felix Frankfurter:

May I ask you a question that isn’t relevant to this case but for completeness sake?

May — does the retirement of granting a rehearing or hearing en banc required to be done by all active circuit judges?

Philip Elman:

The Western Pacific Railroad case makes it clear that the panel, the three-judge panel, no matter by — how it’s constituted, the three retired circuit judges on the panel may initiate the process of rehearing en banc.

And conceivably under the Western Pacific Railroad case may decide against submitting it to the entire Court if all the act of circuit judges of the circuit are willing to permit such a procedure, so that —

Felix Frankfurter:

So the (Voice Overlap) decide that, did it?

Philip Elman:

The opinion is extremely broad.

I think it was written as a — as a comprehensive guide to the Courts of Appeals in formulating procedure.

Felix Frankfurter:

There’s never been anybody thought about this problem, is there?

Philip Elman:

I couldn’t say.

Felix Frankfurter:

Well, I mean —

Philip Elman:

So far as this mediocre —

Felix Frankfurter:

(Voice Overlap) it didn’t say any more — the opinions don’t indicated that, do they?

Philip Elman:

When — if you say the immediate problem and mean that problem of Judge Medina participating a decision en banc here, I think it’s —

Felix Frankfurter:

No, no.

Philip Elman:

— perfectly clear —

Felix Frankfurter:

I’m not talking about that.

Philip Elman:

And nobody thought of that.

Felix Frankfurter:

I just want to know whether what the position of the Government is on the question of determining whether there should be an en banc hearing or rehearing.

Philip Elman:

We think, that a rehearing en banc can be ordered only by a majority of the circuit judges of the circuit who are in active service.

Only a certain — an active circuit judge of the circuit may cast an effective vote to grant to order rehearing.

It does not follow that he may not — that a retired judge or an assigned judge may not participate in the deliberations preceding that action of the Court.

Do you think —

Felix Frankfurter:

But how can you search whether you did or did not have an active share?

Philip Elman:

We don’t think it makes any difference whether he had an active share or not.

Felix Frankfurter:

You mean —

Philip Elman:

A retired judge can vote to deny, it doesn’t under our view, the statute does not granted —

Felix Frankfurter:

But granted — what I want to know that evidence didn’t make myself clear.

May a panel of three call upon the grant of motion for rehearing en banc —

Philip Elman:

Yes.

Felix Frankfurter:

— include a nonactive, a retired judge in this convention sense of (Inaudible)?

Philip Elman:

The panel may vote to deny.

It certainly may not vote to grant rehearing en banc because that can be done under the statute only by a majority of the circuit judges in the circuit who are in active service.

There is nothing in Western Pacific that says that statues can be construed or should be construed otherwise.

Do you think —

Felix Frankfurter:

But if — if — if I may include this, but if they’re nonactive members, one of the three —

Philip Elman:

Yes.

Felix Frankfurter:

Who knows what inference he had in getting two active, one is to grant.

Philip Elman:

Two of the active three — two the active three couldn’t vote to grant a hearing en banc.You have to have the — all of the circuit judges of the circuit who are in active service.

Felix Frankfurter:

A majority.

Philip Elman:

A majority circuit judge of the circuit not of the panel.

Felix Frankfurter:

Well, suppose there are only — suppose there are only four active circuit judges —

Philip Elman:

Yes.

Felix Frankfurter:

— and two of them sit on the panel?

Philip Elman:

Right.

Felix Frankfurter:

And they couldn’t grant, could they, a rehearing?

Philip Elman:

If there two or four?

Felix Frankfurter:

Two of four.

Philip Elman:

Two of four could — would not be majority if it’s a — it’s a — if — if the Court of Appeals consist of four active circuit judges, only three could order a rehearing en banc.

That’s what the statute says.

There’s nothing ambiguous about it.

Now, the important point is that it makes a difference whether the rehearing en banc is granted or denied because so far as denial is concerned there’s nothing in the statute which — which precludes the participation of a retired judge or a judge, circuit judge, from another circuit from — from — from saying to the — to the entire —

Felix Frankfurter:

And on top of that, it would have been granted if this — that a persuasive and powerful nonactive judge hasn’t been one of the three denying it.

Philip Elman:

I don’t think, there’s anything in the statute advices his discussion of the thing.

There’s been a — the case where the judges were qualified to vote.

The statute deals with who votes not who talks to whom.

There’s nothing improper in the — in — in–

Felix Frankfurter:

Yes, but talking may affect voting.

Philip Elman:

But the statute doesn’t bar it.

Felix Frankfurter:

Well, I know but you got to give congruity to the statute, those irrelevant considerations.

And you don’t read this — You don’t need a jurisdictional statute mechanically that way because —

Philip Elman:

We don’t —

Felix Frankfurter:

— this Court held that three equals five.

Philip Elman:

We’re not here arguing that — that the statute prohibits talk.

All we are — all we are arguing here is does statute prohibit to vote.

If the consequence of that decision is that it prohibits talk, the question may arise — may arise but not in this case.

You — I take that your view is that the judicial counsel which means before Court of Appeals, I can’t get use to could not under this statute pass a an order saying that all petitions for a rehearing en banc are to be referred to and determined by the panel which heard the case.

Do you say that would not be permissible?

Philip Elman:

You say determined, I — I ask what do you mean grant or deny or both?

I mean granted or denied, either one.

Philip Elman:

Well, I don’t think that even a judicial counsel with all its broad powers —

But as we refer you could do that on the Second Circuit informally for a considerable period.

Philip Elman:

Grant.

Yes.

Philip Elman:

We have — we have never found the case.

We have not found the case of any —

It had been reported it was informal but I am sure the other circuits that act exactly in that way.

Philip Elman:

Well, if that is done, it’s done with the concurrence and authorization of a majority —

It is.

Philip Elman:

The circuit judges of the circuit — well —

But you say that that could not be done under — under your view of the statute, you say, “don’t agree.”

Philip Elman:

No, no.

If a majority of the circuit judges of the circuit who are in active service are willing to delegate to — to the panel the function of granting rehearings en banc, I think, that’s — whether that’s (Voice Overlap) —

That could be done — it could be done?

Felix Frankfurter:

Yeah it could be on your — on the basis of your argument that all I have to do is to read in active service equal active circuit judges, I don’t see how they — how you can by consent upon order on the rule of the Court —

Philip Elman:

Well, I think this is —

Felix Frankfurter:

— to grant jurisdiction.

Philip Elman:

This may begin — this maybe cutting it very fine with Mr. Justice.

But the statute gives power to a majority of the circuit — judges of the circuit who are in active service.

They and only they have the — have the power to order a rehearing or hearing before the court en banc if they choose to allow that power to be exercised by a three-judge panel acting for the majority of the circuit judges of the circuit who are in active service.

I think, and I must say that it isn’t presented by this case and I maybe speaking perjuriously.

But I would suppose that it determines an interpretation that Western Pacific Railroad case would be that that could be done, but that doesn’t answer the question here, because in this case you do not have a majority of the circuit judges of the circuit who are in active service saying that we’re going to authorize a retired judge to vote in a decision of the merits en banc.

Now, in this case the active judges of the circuit in active who — who participated in the en banc proceedings were evenly divided.

You had Judges Clark and Waterman on one side, Judges Hincks and Moore on the other, Judge Lumbard, the fifth active circuit judge who had been United States Attorney disqualified himself.

So the active circuit judges were evenly divided and the matter was decided by the vote of the retired judge, Judge Medina.

So that everything that we have been talking about in relation of the — to possible scope of the — of the delegation of the power of the active circuit judges of the circuit in relation of granting petitions for rehearing has nothing to do with — with the — with the Second Circuit —

May I put his hypothetical to you?

Philip Elman:

Yes, sir.

Supposing you had an order of the judicial counsel delegating to the panel that it heard a case, the power to decide deny or grant a petition for rehearing, which I take it you say, would be permissible under Western Union Pacific, so far are we together?

Philip Elman:

I — I — I think I may have — I may have —

Well that’s —

Philip Elman:

— not appreciated your first question because I did not equate the judicial counsel.

Well — I used the judicial counsel as a thumbnail for the —

Philip Elman:

All right.

Philip Elman:

As long as you — as long as you have the power being exercised —

All right.

Philip Elman:

— by the circuit judge, there’s no problem.

By all the judges.

And so far, you would say that that would be permissible for the circuit to do, majority of the circuit judges to do.

Now, supposing you have a panel.

It is composed of three judges one of whom has retired, retired after the decision of the case but before the motion for rehearing en banc is acted on —

Philip Elman:

Very common situation.

Could he try — could he participate in the vote or not?

Philip Elman:

Certainly not.

Could not.

Philip Elman:

No.

And the vote to grant rehearing, the vote of — of the — could he sit in the hearing of the en banc.

That he is —

Philip Elman:

No, no.

That he — could he — could he vote — could he vote to grant or deny the petition for a rehearing?

Philip Elman:

Oh, yes.

He could.

Philip Elman:

Yes.

That’s what I said about.

Not sit on the Court.

Philip Elman:

I — I — I’ve been focusing, Mr. Justice Harlan, on the — on the question which is presented by this case which is not who votes on whether a rehearing should be ordered or not but who sits — who sits on the Court which decides.

Well in other words what you are saying is this that although a retired judge could participate in the — the act of granting or denying the petition for rehearing, a judge who is an active judge after the petition for rehearing has granted en banc cannot participate in the decision on the merits after he is retired?

Philip Elman:

Because there’s all the difference in the world between the problem of how you — how you work out the procedures for — for ordering or not — or denying rehearing en banc which the Western Pacific Railroad opinion is addressed to and the second problem presented by this case is to which the statute as — as — as we read it are clear.

Once rehearing is ordered before whom?

Now, Judge Hincks in his opinion for the Court of Appeals here rely on Section 43 (b) of the 48 Code which we have in our brief in the appendix, page 30.

It’s also quoted by Judge Hincks at page 139 of the record.

And that provides that each Court of Appeal shall consist of the circuit judges of the circuit in active service.

The circuit justice and justices or judges designated or assigned shall also be competent to sit as the judges of the Court.

Now, Judge Hincks construed Section 43 (b) in relation to 46 (c) and it said — he said that the — he said on behalf of himself and Judge Moore and Judge Medina that under 43 (b), any judge which would include the circuit justice and any justices or judges designated or assigned, any judge who’s competent to sit with the Court of Appeals is also a member of the Court of Appeals en banc.

Philip Elman:

Now first of all that — that is a rather awkward reading of its statute.

43 (b) defines a Court of Appeals as consisting in the circuit judges of the circuit in active circuit — in active service.

That’s a definition of who is a member of the Court of Appeals.

Then it goes on to authorize other judges designated and assigned to sit as judges of the Court.

It does not make the judges who are designated to assign members of the Court of Appeals.

Now, 46 (c) dealing specifically with en banc proceedings says that a court en banc shall consist of all active circuit judges of the circuit.

It does not go on as 43 (b) does and provide that the — the circuit justice and justices or judges designated or assigned shall also be competent to sit as judges of the en banc court.

Now, if — if Judge Hincks is right, what — what is left to that provision of 46 (c) if any justice, any judge and this isn’t just limited to circuit judges, this isn’t limited to the circuit judges of the circuit, it isn’t limited to district judges, it applies to judges of the Court of Claims, the Court of Customs and Patent Appeals, Customs Court whether they’re retired, whether they’re active.

It doesn’t make any difference when they were retired.

The scope of the power of designation and assignment is extremely broad.

It covers practically every federal judge.

Now, if any federal judge active or retired of any federal court is competent to sit as an — as a member of the en banc court because of Section 43 (b), what is left to 46 (c), it says —

Felix Frankfurter:

And as to the justice as well.

Preliminary to that would you tell me whether 43 (b) and 46 (c) were contemporaneously drafted and adopted?

Philip Elman:

They both — they both appear in the 1948 Judicial Code.

Felix Frankfurter:

Originally?

Philip Elman:

46 (c) came into the statute for the first time in 48 and the 48 Code in effect codified the decision of this Court in the Textile Mill — Mills case.

That came in the 1948, I think and I may not be — altogether accurate about this.

My — my feeling is that 43 (b) goes much farther back, because it deals with designation and assignments which certainly didn’t come in to the statute of 1948, it’s an old provision.

Felix Frankfurter:

I suggest this to you, we are going to cut if fine — let me try cutting this fine.

46 (c) says that in any event the court en banc can consist of all active circuit judges in any event, five or seven or whatever they are, but since the decision en banc is as important as that that had all of those who are qualified to sit to the Court of Appeals join in this determinative decision.

So that the court en banc shall consist of all active circuit judges at a minimum as a prerequisite for convening the court en banc, but addition thereto, the circuit justice may join them.

Philip Elman:

You’re suggesting the circuit justice?

Felix Frankfurter:

I’m suggesting that —

Philip Elman:

At — if anyone else Mr. Justice?

Felix Frankfurter:

All who are qualified to sit in the Court of Appeals that this should be so impressive a tribunal that all those who can exercise the Court of Appeal function should be included in the court and in the en banc composition.

Philip Elman:

Now, that would cover —

Felix Frankfurter:

Now that is — that is you cut fine.

Philip Elman:

Well, I don’t think that is cutting it fine.

Felix Frankfurter:

In other words, in answer to your suggestion —

Philip Elman:

I don’t it is cutting it fine.

Felix Frankfurter:

That’s a suggestion that otherwise a court en banc should consist of all active circuit judges means nothing.

Philip Elman:

But what is the limit?

Felix Frankfurter:

It means an indispensible prerequisite.

Philip Elman:

The statute says the court en banc shall consist of all active circuit judges of the circuit.

Let’s assume arguendo that that also includes the circuit justice, and that would not be drawn —

Felix Frankfurter:

In addition — in addition?

Philip Elman:

In addition.

Does it follow that it also includes every federal judge who maybe designated and assigned.

This isn’t cutting it fine.

There would be no limit on the size of the Court of Appeals en banc and it would reduce the purpose of en banc proceedings to an utter absurdity.

The purpose of an en banc proceeding is to resolve or avoid intra circuit conflicts.

En banc proceedings are — are not the rule, they’re the exception.

They — they arise in a situation where, as Judge Maris put it, there’s a serious strain within the Court.

You got a cut — one panel either deciding or about to decide a case in a particular way.

Other judges of the Court may think that they would decide the matter another way, suppose they sit a year or two years from now and the problem arises, what is — what do they do?

Do they follow the panel decision with which they disagree, even though — even though they think it’s wrong?

Do they overrule it?

Now, the en banc proceeding is — is intended to avoid that kind of — of internal family disagreement which this Court in the Wisniewski case, I believe it’s pronounced, said it was the problem of the Court of Appeals to resolve not to bring here.

Now, who should sit on this en banc court to lay down the law in the circuit for the future guidance of the three-judge panels that are going to be sitting?

Should it be judges of the Court of Customs and Patent Appeals retired or active or retired district judges?

Now in this very case, you had Judge Leibell sitting on the original panel along with Judge Hincks and Judge Medina.

Judge Leibell was a retired district judge sitting by designation in this very case.

He withdrew from the case as soon as the rehearing in en banc question arose.

Now, you have Judge Hand, Judge Swan, and Judge Chase retired circuit judges of the circuit.

None of them has ever sat, so far as we know, in any court convened en banc.

Felix Frankfurter:

I believe (Voice Overlap)

Philip Elman:

That’s another important fact.

Felix Frankfurter:

(Inaudible) en banc, Judge Hand.

Philip Elman:

After his — in the case in which rehearing was ordered after his retirement?

Felix Frankfurter:

You correct me, but I believe Judge Clark with tears in his eyes, weeping heavily he said, he was very sorry that he should try to disqualify Judge Hand because he himself had summoned into sit in the case.

Am I wrong about that?

Philip Elman:

I don’t know the case.

We’ve looked for these cases and — and the only case that we have found in which this problem is discussed is this case.

Now it was — it was — it appears to have been notice in two Ninth Circuit cases.

And of course, it must come up in other cases from time to time but so far as we know there hasn’t been any — any awareness or at least so far as the opinions in the federal report reflected that awareness isn’t shown.

Now, let — let me finish on —

I hope you work out the construction of the statute that says I figured to leave a officer to justice.[Laughter]

Philip Elman:

Mr. Justice, this is not our suggestion.

We think that the statute says active circuit judges of the circuit.

If you read the statute the way it’s written, there’s no problem at all.

Felix Frankfurter:

But we know but — but we always read the statute as it’s written with such light in addition that we can cast upon it

Philip Elman:

Well, the light — the light which is cast upon it by Section 43 (b) here is that if you read 43 (b) into 46 (c) so that any federal judge of any court, active or retired, can sit with the — with the en banc — banc court, you have destroyed, in our opinion, the very valuable purpose of the en banc court, which is to have the active circuit judges of the circuit lay down a law, a limit in the circuit, eliminate these conflicts real or potential.

If — if it would — it would in our view distort Section 46 (c), it would nullify, it would leave it no scope and — and — and it would have no sense at all.

Felix Frankfurter:

I am not saying I am going to read it that way but you got to do better than just to make fun of it and I’ll put these practical considerations to you.

Judge Learned Hand and Judge Swan are for all practical purposes active judges.

He’s not in the technical sense.

They are acting judges in that circuit.

I do not think it would destroy, I can hardly conceive that it would destroy the working of en banc if those wise and experienced men were also added with the present younger and much more vigorous minded, but I am not sure wiser men were now active as circuit judges.

Philip Elman:

Mr. Justice Frankfurter, the views you’ve expressed are the views which were put to the Judicial Conference at its annual meeting last September.

The Judicial Conference agreed that an amendment to 46 (c) in order to take care of retired judges like Judge Hand, Judge Medina, when they sit on the original panel they ought to be allowed to sit on the en banc court.

It was — that was a fine idea and they proposed an amendment to Section 46 (c).

The Judicial Conference report also says that is was the view of the Committees on Court Administration and Revision of the Law that under the statute, that’s the statute as it’s now, not as it’s going to be amended.

Under the statute only judges who are in regular active service, that is those who have not retired, are the judges in active service to which the statutes refer.

Now, it maybe that 1948, when this — when 46 (c) was enacted, nobody thought about this problem.

They — perhaps they wasn’t as acute as — a shortage of active judges as there is now.

There weren’t as many retired judges sitting actively as there are today and the —

Well that report, however, it doesn’t purport to deal with the particular questions we have here.

Philip Elman:

Well, that —

Well that report deals with is desirability of having retired judges sit in en banc.

They don’t direct themselves at all to the proposition of active judge.

The man was active at the time the en banc courts convened were carrying afterwards.

Philip Elman:

In Section 43 (b) means with Judge Hincks and though it mean — meant in this case, there would be no problem, he would need any amendment to 46 (c), because any judge who could be designated and assigned which would certainly include a retired circuit judge who sat on the original panel could be — could be a member of the en banc court, You wouldn’t need any legislation.

Now, let — let me —

I didn’t understand in that way.

May be I read it wrong.

Philip Elman:

Well, it — it doesn’t deal specifically —

No.

But that’s —

Philip Elman:

— with the problem that you have here as to whether an active circuit judge at the time of the hearing, I agree with you, but if — if — if the decision below in this case is right that any judge who can be designated and assigned under 43 (b) may also — may also be a member of the en banc court.

And it’s an a fortiori conclusion that Judge Hand and Judge Medina who — who — who sits in a — the hearing —

I don’t see that it’s relevant.

Philip Elman:

All right.

Well, he certainly maybe — he can’t — he is designated and assigned when he — when he — when as an active judge, he is a member of the en banc court.

But there is nothing in Judge Hincks opinion to suggest that the retired judge, retired before an en banc order is put down and composed the Court the en banc court initially, that he — he isn’t suggesting that.

Philip Elman:

That’s quite true but the rationale of his — of — of — of the decision is 43 (b), and 43 (b) just cannot be accepted consistently with 46 (c).

Now, I think the point may perhaps be more clearly illustrated by comparing what was done in this case with another case in which Judge Medina participated just about the same time.

That was the Reardon against California Tanker case, in 260 F. 2d, which we cited in our brief.

Now that case was argued November 8, 1957 before Judge Swan who is retired, Judge Medina and Judge Waterman.

Medina and Waterman, Judges Medina and Waterman were still in active service.

Now on March 1, 1958, Judge Medina retired.

The case was decided the following month April 7, 1958, opinion by Judge Swan, concurred in by Judge Waterman with Judge Medina dissenting.

Now, Judge Medina’s participation in a case decided by a three-judge panel after his retirement raises no problem at all under 46 (c).

46 (c) has nothing to do with three-judge panel decision.

And there were some 30 odd cases in which Judge Medina had sat before he retired in which he participated in the decision after his retirement.

It’s not an uncommon situation.

There isn’t any connection with Judge Magruder and almost every retired circuit judge and the uniform practice throughout the country has been that there’s no reason in the world, why a circuit judge who was sat in the case where a three-judge panel can’t — can’t proceed to with what the decision notwithstanding his retirement, because a retired judge does not lose the power to participate in that kind of action of the Court of Appeals, simply by reason of his retirement.

It’s 46 (c) that presents the problem and that’s limited to the en banc courts.

Now, in that Reardon case after the three-judge panel decision in which Judge Medina participated dissenting, petition for rehearing en banc was granted and the — the — the order recited that was by vote of the majority of the judges of the circuit in active service.

And so far as we can tell from the reports, every time the Second Circuit grants rehearing en banc, it’s by vote of the majority of the judges in active service.

Philip Elman:

In any event, in that case, rehearing was granted and the en banc court convened and reversed the panel decision, Judges Swan and Medina not participating.

So that in the Second Circuit, as in every circuit, it is clear that where a — where an en banc hearing is ordered after the retirement, the retired judges don’t sit.

And the reason why they don’t sit is Section 46 (c) which has been construed and applied since 1948 as meaning that whatever a retired judge can do, retired circuit judge can do after his retirement, and he can do practically everything that he did when he was an active circuit judge.

The one thing he can’t do after his retirement is sit as a member of the en banc court.

Anymore that when the justice of this Court retires, he cannot participate in the actions, in decisions of this Court even as to cases that were heard and — before him, cases in which he participated in the conference discussions.

He may even have written a draft opinion, but when the justice of this Court retires, he is through so far as this Court is concerned.

He maybe assigned to the circuit judge — courts, he can be assigned to the Court of Claims, he can be assigned to the District Court, but he cannot be assigned to this Court.

It’s a disqualification which cannot be cured by a designation or assignment and the reason is that there is no statute which authorizes a retired justice of this Court, once he retires to participate as a justice in any decision of this Court.

Hugo L. Black:

What are the reasons that have been advanced for drawing that distinction between the circuit judge, sitting after he retired in trial and not sitting in an en banc?

Philip Elman:

Statute.

Hugo L. Black:

Are there any reason to accept the statute, I may ask?

Philip Elman:

The statute — the statute says —

Hugo L. Black:

I am — I am familiar with the statute, I am —

Philip Elman:

Statute, I think statute says —

Hugo L. Black:

— talking about the practical reasons suggested for one side or the other.

Philip Elman:

Well, the statute — the statute doesn’t make it necessary to look at the reasons, Mr. Justice Black, because if they are retired —

Hugo L. Black:

Well then there are — then they are none that you can take up on either side?

Philip Elman:

Oh, I think they are very — very real parallels between the — the retired circuit judge who sits in an en banc proceeding and a retired justice of this Court, because an en banc decision is — is so far as it lays, it — it — it becomes an authoritative expression of the law in that circuit, which isn’t going to become here for review in the ordinary courts.

That’s a — that’s a final decision and — and — and it’s just — it would be just as inappropriate for — for a retired judge to participate in that kind of a thing, in that kind of proceeding as retired justice of this Court.

Felix Frankfurter:

It would then be on policy grounds because of the judicial counsel just relied on the proposed legislative recommendation.

Philip Elman:

But the recommendation is a very narrow one.

The recommendation is limited to retired circuit judges of the circuit who have sat in the original hearing.

There are various — various specific qualifications.

It doesn’t mean that Judge Leibell could sit in this — in en banc proceeding.

It doesn’t mean that Judge Magruder could sit.

It doesn’t mean that Judge Hand could sit unless he was a member of the original panel.

Now, that there are — the Judicial Conference weigh this policy considerations and has come forward with its proposal.

It was introduced by Congressman Celler early in this month.

No hearings have been held.

That’s where the question —

Felix Frankfurter:

Let me be —

Philip Elman:

— of policy ought to be considered entirely.

Felix Frankfurter:

That would be (Inaudible) advocate.

I think that limited authorization makes it even worst that a fellow who was parted through a panel decision and then sits in an en banc and perpetually an ad hoc decision.

That seems to me to be even less desirable.

Philip Elman:

Mr. Justice, I think the place to decide these questions of policy is — is in Congress upon the recommendations of all agencies concerned.

I don’t think in this Court we should have to decide whether it would be a good thing or a bad thing to read this statute the way Congress wrote it in 1948, even though there might be some policy considerations, which we don’t really think are very serious, that It might cut the other way.

Felix Frankfurter:

— if this case doesn’t open up — doesn’t open the door wide, this case represents the various special situation, namely, a judge — this all can be obviated and you suggested in your brief as I quickly faced it, namely, he holds — withholds his retirement until he’s through with that case.

Philip Elman:

Well the —

Felix Frankfurter:

It is not world-checking problem, is it?

Philip Elman:

This is — this is far from a world-checking problem.

I think, the fact that this is the first case since 1948 with this — with the judges of the Courts of Appeal have talked about, it showed that it’s far from that.

In the fiscal year 59, there were 3753 cases decided by the Courts of Appeals throughout the country.

There were 22 hearings en banc, and there were six circuits in which there were no hearings en banc.

Now that shows the order of magnitude of this problem.

Felix Frankfurter:

There were no hearings en banc in the Second Circuit up until Judge Learned Hand retired as the — as the Chief Justice.

Philip Elman:

That’s right.

Now what we — now the argument is made — the argument is made that if you apply this statute the ways it’s written, there will be all kinds of practical problems of reconstituting the courts.

Suppose a new judge — new circuit judge is appointed, does that mean you have to start all over again?

Why — of course not.

Anymore than when a justice is appointed to this Court, he participates in — in cases that were heard and considered by the Court before he took his sit.

Ordinarily, the rule of judicial practice is that a new judge, if he’s not familiar with — with the case and if it’s gone so far that ought to be decided without his participation, he won’t participate, but of course, the Court of Appeal, just like this Court, can set the case down for rehearing depending on a particular circumstance.

And we’ve cited cases in our reply brief where both have been done.

Supposing the panel divided the en banc had gone the other way and Medina and Hincks were stuck with their original decision in your favor, do you think you’d be up here? [Laughter]

Philip Elman:

Who can say? [Laughter]

Earl Warren:

Well, if the decision would have been the same, they could’ve gotten the — gotten the rehearing.

It couldn’t have happened, if that third vote hadn’t been in the Court.

Philip Elman:

What makes this case a very dramatic case, of course, is that the District Court dismissed these libels on the authority of two Second Court — Circuit decisions.

The case was heard before a three-judge panel.

Judge Hincks wrote the opinion and he said, “Well we’re bound by these two Second Circuit decisions.”

Philip Elman:

They are very recent ones, and we’re — we don’t think that we are to overrule them although it were recent, although we’re not sure if we come out the same way.

Now, the first of those cases, the Sword Line case, the panel consisted of Judge Clark and Judge Waterman and Judge Hand dissenting.

Now Judge Clark and Judge Waterman, of course, adhered to their views.

Now, then came up before these three-judge panel with Judge Medina, Judge Hincks and — and — and Judge Clark, I beg you pardon, Judge Leibell.

And judge — this — this is the — this is the traditional classic situation of a problem which the en banc proceeding has tend to avoid.

Judge — Judges Hincks and Medina felt themselves bound to follow these earlier decisions even though they disagreed with them.

And this — where you have this kind of an intra circuit conflict, the statute says that the en banc court, if it’s ordered by majority of the active circuit judges of the circuit, shall consist of those judges and nobody else.

Now, if — if 46 (c) means, as we think it unquestionably means, that a judge who has retired before the hearing en banc cannot be designated to sit with the en banc court, it’s because the statute makes him incompetent.

He’s just disqualified to sit there, just as if he had resigned.

A resigned judge can’t be assigned to sit with the Court of Appeals en banc and a retired judge is in precisely the same position as — as a resigning judge as to en banc.

So, that if Judge Medina, after he had participated in the hearing en banc, had decided to resign on his 70th birthday.

He — the fact — the fact that he heard the case doesn’t mean that he had any power to decide it.

Now, the respondents argue that there’s a general principle that once a judge hears a case, he’s under a duty to decide it.

Well, as a generalization it’s certainly valid but it doesn’t carry very far when there’s a specific statutory provision that says, he can’t decide it because he’s incompetent to decide it.

Could I ask you a practical question?

Assuming you prevail here, where there is the consequence, the judge one who is vacated, he goes back to the Court of Appeals.

Could there be a new en banc court?

Philip Elman:

We are asking Your Honors to hold that when this case was decided by the Court of Appeals en banc, Judge Medina’s participation in that decision was not authorized by Section 46 (c).

The judgment should be vacated by this Court and the case should be remanded to the Court of Appeals for further proceedings not inconsistent with Section 46 (c), which would leave the Court of Appeals with the power and the responsible discretion to decide what disposition of the case should be made by it which is not in violation of the statue.

All we’re asking Your Honors to hold is to apply the statute here, leaving to the Court of Appeals the question whether the Court on remand there should be a new hearing en banc before the active circuit judges of the circuit of the — as — as they now consist also of Judge Friendly, conceivably Judge Smith, maybe confirmed by the time the case gets back.

Yes, but the Government’s deal would be, there’s no legal impediment to the Court ordering a new en banc hearing?

Philip Elman:

Certainly not.

On the other hand, the Court of Appeals might decide that — that the — that the last judgment of the Court which was vacated by this one — this one being invalid, the Court of Appeals might decide that it would like — it would — would let the matter rest there.

We don’t — we’re not telling the — excuse me.

Felix Frankfurter:

Excuse me.

Philip Elman:

Well, the only — the only reason the case is here is that we — we think that it’s important that Section 46 (c) not be disregarded.

And we think that if — if the interpretation given to that — to 43 (b) by Judge Hincks is accepted there’s practically nothing left of 46 (c).

There would be no limit, no ceiling as — as to this — as to the composition of the en banc court.

Felix Frankfurter:

The order granting en banc hearing which was exposed around fields, around briefs here that was a wholly valid order, was it not?

Philip Elman:

Certainly.

Philip Elman:

That was referred to the whole Court —

Felix Frankfurter:

Yes.

Philip Elman:

— which is —

Felix Frankfurter:

Why should that be vacated?

Philip Elman:

We’re not suggesting it should be.

All we’re suggesting that it would —

Felix Frankfurter:

Well, I understood you to say you vacate what the Court — vacate the judgement in this case and leading the Court of Appeals to — to anything it please not inconsistent with that.

That would allow to vacate the order en banc.

I don’t quite see why that could be done because when that was entered, that was a valid order.

Philip Elman:

The judgement that is under review here appears in the record at page 136.

It’s the judgement of July 28, 1958 which with — withdrew the opinion of the three-judge panel in order that the judgment of that three-judge panel be vacated and that a new judgement be entered.

We are asking Your Honors to vacate that judgment now because of Judge —

Felix Frankfurter:

I understand that.

Philip Elman:

— Medina’s participation.

Now if you do that — if you do — if you do that, you leave the status of the case precisely as it was on March 1st, 1958 when Judge Medina retired.

The Court of Appeals —

Felix Frankfurter:

And that would leave specifically?

Philip Elman:

It would leave the order granting rehearing en banc.

There’s nothing wrong with that.

Felix Frankfurter:

No, nothing wrong.

Philip Elman:

Absolutely nothing.

Felix Frankfurter:

I simply want to be satisfied with that.

Philip Elman:

No.

Nothing wrong.

Felix Frankfurter:

That should stay and — and I think, it would be — there would be nothing to rule why the Court of Appeals properly constituted according to your view should vacate that, is that?

Philip Elman:

I don’t think — I don’t think that if they decided to vacate it, there would be grounds for our coming back here, because that — whether — whether rehearing en banc should be vacated is for the Court of Appeals.

Felix Frankfurter:

Yes.

But — but since that was not challenged and the challenge —

Philip Elman:

That’s right.

Felix Frankfurter:

— here is that the judgment —

Philip Elman:

That’s right.

Felix Frankfurter:

— following a valid order.

I don’t see why denounce the whole world if — if we can’t hear en banc, we’ll let the panel judgement stand.

I don’t see why they should have any discretion to do that.

Philip Elman:

I — I think that — that is a question that’s not before the Court right now.

The only question before the Court right now is the validity of this judgment of July 28, 1958 and I would like to make one further point of that with this problem that forced it down.

There is an argument here which is presented very seriously that even though — even though Judge Medina couldn’t sit, even though the statute barred him from sitting, even though he isn’t — he wasn’t the jury judge when he voted to in this case, still he was a de facto judge.

And so that — on that the assumption of this argument is that even if Section 46 (c) specifically said, “The court en banc shall consist only of active circuit judge of the circuit and a retired judge cannot vote in the case, even though he was an active circuit judge when he heard the argument of the case still he can’t sit.”

This argument would be that, well, if he did sit, it was de facto and therefore this Court shouldn’t disturb his judgment.

Now, if the statute means — means that —

Felix Frankfurter:

Well, there is (Voice Overlap)

Philip Elman:

Then it wouldn’t make any difference what the statute says.

Felix Frankfurter:

There is refutal.

There is a refutal on the statute, isn’t it?

You yourself said a little while ago, nobody thought about this problem in 48 and there’s the lacuna which we say, it shall consist of the active judges and thereby tried in denying that although it began to consist of, it was — it was of necessity terminated the day before that the opinion came on, he was retired (Inaudible).

Philip Elman:

Well I — I must — I must direct myself.

I’ve given you an impression that — that there is a lacuna in the statute.

Felix Frankfurter:

You didn’t say it, that’s my word and that’s my thought.

Philip Elman:

Well, let me rephrase — let me rephrase it.

There’s no — nothing in the legislative history of the 48 Code or the bill, and that originally enacted 1941 from which it spread, or the Textile Mills opinion or anything else that relates to this problem which shows that anybody specifically addressed themselves to this particular precise now problem.

But if you look at the whole picture, you’ll find throughout in the Textile Mills opinion, very first sentence of the Textile Mills opinion, the question is whether the Court of Appeals composed of the active circuit judges of the circuit makes it.

There’s been — there is no reference at all at any point to the retired judges.

The assumption throughout, and of course, this is negative legislative history and the significance that it has, if Your Honors to decide, but there is no suggestion that anybody thought that at anytime the retired judge could sit in an en banc court, and the statute specifically says that only active circuit judges may sit.

So, we don’t think there’s any lacuna in the statute.

Now, as far as — as far as the circumstance that Judge Medina was an active circuit judge, when — at the time the case has submitted the en banc court was concerned.

If Section 46 (c) means that an en banc court which hears and determines the case may consist only of active circuit judges, then there is no difference as we see it, in the situation where he retired before the case was heard by the en banc court and the case where he retires after, because at the time of the decision of the case, he is disqualified from participating to the same extent as if he had resigned.

Felix Frankfurter:

That would be incontestable — logical, purely logical argument, but there’s a different in fact between the board — the court being properly constituted when it engages to hear and begins the process of determination, and a court which begins the process of determination when the man is disqualified.

Philip Elman:

That’s right.

There is a difference but should there be a difference in the result if — if –if the section —

Felix Frankfurter:

That’s what de facto means.

Philip Elman:

That’s why —

Felix Frankfurter:

That’s the problem of de facto judge.

Philip Elman:

Well, suppose judge — suppose — this a, of course, fantastically absurd but suppose Judge Medina at the — after — after participating properly and validly in the hearing before the en banc court, suppose he had been impeached and suppose he had sat, suppose some — some — someone thought that didn’t make any difference.

Now, if a disqualification attaches to judicial power, a disqualification which cannot be remedied by designation or assignment by the Chief Judge or the Chief Justice of the United States, the power can’t be exercised wether it’s resignation, impeachment, or retirement.

And — and so far as an en banc proceeding is concerned, we think that the statute means that they — there’s as much of a disqualification, as if he had resigned and if — if there are any — any — any difficulties, illogic or any reasons at all why the statute should be change, that’s for Congress.

Thank you very much.

Earl Warren:

Mr. Fort.

J. Franklin Fort:

(Inaudible) Mr. Becker is arguing.

Earl Warren:

Oh — oh, yes.

Mr. Becker, excuse me.

Arthur M. Becker:

May it please the Court.

Before getting into my main argument on this point, I should like to answer some of the questions raised by Mr. Justice Harlan and Mr. Justice Frankfurter.

On the first question, Section 43 (b) and Section 46 both went up to give it as one piece of legislation in every draft.

Part of Section of 43 (b) had been in Section 120 of the former Judicial Code, Section which is outlined in my brief.

Section 120 of the former Judicial Code provided that the circuit justice and the chief justice of the Supreme Court shall be competent to sit with the court en banc.

It also provided that a district judge had a limited competency that he could sit with the Court of Appeals only when his presence was necessary to fill out a three-judge court.

But the new 43 (b) which in the earlier draft is called Section 42 went up together with 46 and they were discussed together at all times.

Those two sections were bracketed throughout the entire legislative history.

I have all the drafts and in every draft those two sections were discussed together.

Now, I think this — that’s the first point I should like — I’d like to come back to that a little later, because I think, the legislative history affirmatively shows that the revisions that were made in Section 43 (b) from the former Section 120 of the Judicial Code was specifically designed to make designated and assigned justices and judges competent to sit on the court en banc.

So, they were put in there for that specific purpose.

I’ll come to that in a moment or two.

Now, in answer —

Earl Warren:

Do you agree with Mr. Elman that if — if Judge Medina was entitled to sit in this case that any assigned judge, whether he is in the Court of Appeals from some other circuit or the district judge or does the Court of Claims, he would be in exactly the same position?

Arthur M. Becker:

No, sir.

I —

Earl Warren:

What differentiation do you make?

Arthur M. Becker:

Use of differentiation I would mean.

I think, this Court in the Western Pacific Railroad Case held that Section 46 was a grant of power, the entire Section, to a Court of Appeals to assign judges has to distribute its work among its members.

The Court of Appeals is defined in Section 43 (b), in the first Section, as the active circuit judges of a circuit.

Earl Warren:

That’s right.

Arthur M. Becker:

I think that Section 46 said, “Those judges, the active judges of a circuit can assign and distribute the work among any judges competent to sit as members of the Court.”

However with respect to 46 (c), the section said, “All active judges must be members of the court en banc,” but it did not preclude the active judges of the circuit, the Court of Appeals from assigning other judges to that court as well.

Now, I think Judge Medina’s situation is different because he was a member of the en banc court and I do not think, he could have been excluded after being a member of the en banc court.

But as I interpret the statute, I would see nothing wrong in a Court of Appeals to break a tie or because they anticipate a tie or because they felt it would be advisable from — from assigning Judge Hand to the Court of Appeals.

I don’t think they have to because the grant of power is the active judges.

They must assign all active judges of the circuit to that court, but I think they have the power under Section 46 to assign any competent judge but they don’t have to do that.

That’s where they have discretion.

Earl Warren:

Well, what language do you rely on in 46 (c) to things that that included?

Arthur M. Becker:

Well, Your Honor, I am relying on the entire Section not on 46 (c).

Earl Warren:

But you said 46 (c) so —

Arthur M. Becker:

Oh, 46 on the entire Section 46.

I say in 46, the entire Section deals with the Constitution of the Courts of Appeals, its divisions, and the times that shall sit and who shall be assigned to it.

That is what the Section says.

Earl Warren:

Yes, but is there any other section than 46 (c) that defines the court en banc?

Arthur M. Becker:

No, sir.

But Section 43 (b) which states that designated and assigned judges shall be competent and without any qualification to sit as judges of the Court of Appeals.

I believe it gives the active judges of the circuit who comprise the Court the power and authority to — to assign any judge who has been assigned to the Court to a court en banc in addition to the active members of the Court (Inaudible).

Earl Warren:

May I — may I just pursue this one question so far —

Arthur M. Becker:

Yes, sir.

Earl Warren:

— that then — then you would agree with Mr. Elman to this extent at least that if the — if the Court, the active members of the Court wanted to do it, they could assign a visiting district judge or visiting judge of a Court of Appeals or another circuit or Court of Claims or — to the court en banc?

Arthur M. Becker:

That’s right.

And that is precisely I’d like to point out what the Fifth Circuit in Bishop against Bishop did.

There have been a lot cases on this and every one of them is consistent with this theory.

In Bishop against Bishop, Judge Magruder who was then an active judge of the First Circuit sat — had been designated and assigned to the Third Circuit.

He sat on the panel.

After the case was decided by the panel, the court en banc, five judges of the Court which were a quorum, as a quorum provision, and the Court consisted of seven so far with quorum.

The court en banc consisting of Judge Magruder and four other judges sat, denied a petition for rehearing en banc and Judge Maris who — I don’t just — I am not singling him out, but I am mentioning him because the Government’s argument is continuously on speculation of what Judge Maris would have done.

But Judge Maris was a member of the Court and Judge Magruder did sit with the court en banc in denying a rehearing en banc.

And if you recall on the Western Pacific Railroad case, this Court said the court could sit en banc to consider the petitions for rehearing en banc or could decide them informally.

Arthur M. Becker:

Apparently the — the practice in the Third Circuit is for the Court to sit in en banc and that’s precisely what happened.

Felix Frankfurter:

But Mr. Elman makes the point that it’s one thing for a nonactive member of the particular circuit to sit when they deny an application for sitting en banc and when they grant it can actually sit on.

Arthur M. Becker:

Well, Your Honor, I —

Earl Warren:

You may answer that after —

Arthur M. Becker:

Certainly.