United States v. American-Foreign Steamship Corporation

PETITIONER: United States
RESPONDENT: American-Foreign Steamship Corporation
LOCATION: Fleetwood Paving Co.

DOCKET NO.: 138
DECIDED BY: Warren Court (1958-1962)
LOWER COURT: United States Court of Appeals for the Second Circuit

CITATION: 363 US 685 (1960)
ARGUED: Apr 25, 1960
DECIDED: Jun 20, 1960

Facts of the case

Question

Media for United States v. American-Foreign Steamship Corporation

Audio Transcription for Oral Argument - April 25, 1960 (Part 1) in 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

(Inaudible)

Arthur M. Becker:

Your Honor.

I mentioned the case of Bishop against Fisher in which Judge Maris participated as being in the First Circuit, I'm told -- I meant the Third Circuit which Judge Magruder --

Earl Warren:

Yes.

Arthur M. Becker:

-- has been assigned from the First to the Third Circuit and then participated in the en banc -- in the en banc decision to deny a petition for rehearing in the Third Circuit, not in the Fifth.

Now, I believe that the --

Earl Warren:

Is that the only instance you've ever -- you've been able to find that it was ever done?

Arthur M. Becker:

Well, then sir, of a judge assigned from another circuit.

Yes, but we have found several cases precisely like this one in three circuits -- three other circuits where a judge who an active judge who was assigned to a Court of Appeals en banc and thereafter retired after the case was submitted, participated in the decision of the court.

Now, we found that that practice to be followed in the Third Circuit and we have two cases in our briefs on that in addition to the two cases we have, are (Inaudible) and (Inaudible) against the Auto Racing Association.

Now, they referred to in the Government's reply brief on page 4 and in our supplemental brief on page 2.

In both of those cases, Judge Maris, the situation is exactly the same.

They were heard exactly the same time by a court en banc of which Judge Maris is an active Judge of the Third Circuit participated.

Thereafter, Judge Maris retired.

Thereafter, he participated in the decision of both of those cases on the same day.

It's precisely the same as the case now before the Court.

Earl Warren:

Did they grant the rehearing on those cases or denied them.

Do you know?

Arthur M. Becker:

They -- no -- no, this was not a grant of rehearing.

Judge Maris --

Earl Warren:

When they acted en banc did they have --

Arthur M. Becker:

Yes, sir.

There had been a grant of a rehearing.

It's like this case.

It's not like this supposititious case.

Earl Warren:

I see.

Arthur M. Becker:

And he was on the court en banc on the rehearing or on the hearing or rehearing.

He was a member of the court en banc just like Judge Medina was.

Thereafter, he retired.

Thereafter, the case was decided and he participated in the court's decision.