United States v. American-Foreign Steamship Corp.

363 U.S. 685, 80 S. Ct. 1336, 4 L. Ed. 2d 1491, 1960 U.S. LEXIS 1877

• Court: Supreme Court of the United States
• Decided: June 20, 1960
• Docket: 138
• Status: Published

Opinions

Mr. Justice Stewart

delivered the opinion of the Court.

The question to be decided here is a narrow one. The Judicial Code provides that in the United States Courts of Appeals “[cjases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service.” It further provides that “[a] court in banc shall consist of all active circuit judges of the circuit.” 28 U. S. C. §46 (c). The sole issue presented is whether a circuit judge who has retired is eligible under this statute to participate in the decision of a case on rehearing en banc. We have concluded that he is not.

This litigation arose when the respondents, who had chartered ships from the Government under the Merchant Ship Sales Act, 50 U. S. C. App. §§ 1735 et seg., sued the Government in the District Court for the Southern District of New York to recover amounts of allegedly excessive charter hire which had been assessed by the Maritime Commission. The Government moved to dismiss the libels on the ground that the claims were barred by the two-year limitation period prescribed by the Suits in Admiralty Act, 46 U. S. C. § 745. The libels were dismissed in the District Court on the authority of the Second Circuit decisions in Sword Line, Inc., v. United States, 228 F. 2d 344, 230 F. 2d 75, aff’d as to admiralty jurisdiction, 351 U. S. 976, and American Eastern Corp. v. United States, 231 F. 2d 664.¹

The District Court’s decisions were thereafter affirmed by the United States Court of Appeals for the Second Circuit. That court, consisting of Circuit Judges Medina and Hincks and retired District Judge Leibell, held that the issues were controlled by the earlier Sword Line and American Eastern decisions. The court’s opinion stated, however, that “[i]f the subject-matter of these appeals were res nova, we are by no means sure that our dispositions would coincide with those made by the majority opinion in Sword Line and by American Eastern. However, we will not overrule these recent decisions of other panels of the court.” 265 F. 2d 136,142.

Thereafter, on December 19, 1957, the Court of Appeals granted the libellants’ petition for rehearing en banc and ordered that argument thereon be confined to written briefs to be submitted within twenty days. On March 1, 1958, Judge Medina retired pursuant to the provisions of 28 U. S. C. § 371 (b).² Almost five months later, on .July 28, 1958, the court issued its en banc decision. Circuit Judges Hincks and Moore and retired Circuit Judge Medina joined an opinion ordering the earlier three-judge decision withdrawn and remanding the causes to the District Court, 265 F. 2d 136, 144. Judges Clark and Waterman dissented.³ In his dissenting opinion Judge Clark expressed doubt as to a retired judge’s eligibility to participate in an en banc decision. 265 F. 2d 136, 153.

The Government then filed a petition for further rehearing en banc, directed primarily to the question which had been raised by Judge Clark. The petition was denied in an opinion by Judge Hincks joined by Judges Moore and Medina, stating the view that “[s]ince Judge Medina was a member of the court in banc which was duly constituted to hear and determine the issues raised by the petition for rehearing, we think his subsequent retirement did not affect his competence to participate in the decision thereafter reached.” 265 F. 2d 136, 154. Judges Clark and Waterman filed a separate statement in which they expressed the opinion that Judge Medina’s participation in the en banc determination was precluded by the plain language of the controlling statute. 265 F. 2d 136, 155. Certiorari was granted to consider a question of importance to the Courts of Appeals in the administration of their judicial business. 361 U. S. 861.

As a preliminary to decision of the precise question before us it is important to make clear that this case in no way involves the eligibility of a retired judge to participate in the hearing, rehearing or determination of a case as a member of a conventional three-judge Court of Appeals. Such participation is governed by different statutory provisions. The Judicial Code explicitly provides that “judges designated or assigned” shall be “competent to sit as judges” of such a court. 28 U. S. C. § 43 (b). Other provisions of the Code spell out in detail the system under which designations and assignments of retired judges are to be made. 28 U. S. C. §§ 294, 295, 296.⁴

Moreover, there is not involved here any issue as to the procedure to be followed by a Court of Appeals in determining whether a hearing or rehearing en banc is to be ordered. In the Western Pacific Railroad Case, 345 U. S. 247, it was held that this question is largely to be left to intramural determination by each of the Courts of Appeals. “The court is left free to devise its own administrative machinery to provide the means whereby a majority may order such a hearing.” 345 U. S., at 250.⁵

Here we' are concerned only with the specific provision of the Judicial Code which ordains that en banc proceedings shall be “heard and determined” by a court consisting of all the “active circuit judges” of the circuit involved. The literal meaning of the words seems plain enough. An “active” judge is a judge who has not retired “from regular active service.” 28 U. S. C. § 371 (b). A case or controversy is “determined” when it is decided.

There is nothing in the history of the legislation to indicate that these words should be understood to mean anything else than what they say. As the Reviser’s Note indicates, and as this Court pointed out in the Western Pacific Railroad Case, 345 U. S., at 250, 251, where the legislative history was fully reviewed, the statutory provision was added to the Judicial Code in 1948 simply as a “legislative ratification of Textile Mills Securities Corp. v. Commissioner, 314 U. S. 326 (1941) — a decision which went no further than to sustain the power of a Court of Appeals to order a hearing en banc.” ⁶

The view that a retired circuit judge is eligible to participate in an en banc decision thus finds support neither in the language of the controlling statute nor in the circumstances of its enactment. Indeed, Congress may well have thought that it would frustrate a basic purpose of the legislation not to confine the power of en banc decision to the permanent active membership of a Court of Appeals. En banc courts are the exception, not the rule. They are convened only when extraordinary circumstances exist that call for authoritative consideration and decision by those charged with the administration and development of the law of the circuit.

When such circumstances appear, en banc determinations make “for more effective judicial administration. Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. Those considerations are especially important in view of the fact that in our federal judicial system these courts are the courts of last resort in the run of ordinary cases.” Textile Mills Corp. v. Commissioner, 314 U. S., at 334-335. “The principal utility of determinations by the courts of appeals in banc is to enable the court to maintain its integrity as an institution by making it possible for a majority of its judges always to control and thereby to secure uniformity and continuity in its decisions, while enabling the court at the same time to follow the efficient and time-saving procedure of having panels of three judges hear and decide the vast majority of cases as to which no division exists within the court.” Maris, Hearing and Rehearing Cases in Banc, 14 F. R. D. 91, at 96 (1954). As Judge Clark put it in the present case, the evident policy of the statute was to provide “that the active circuit judges shall determine the major doctrinal trends of the future for their court . . . .” 265 F. 2d, at 155.

Persuasive arguments could be advanced that an exception should be made to permit a retired circuit judge to participate in en banc determination of cases where, as here, he took part in the original three-judge hearing, or where, as here, he had not yet retired when the en banc hearing was originally ordered. Indeed, the Judicial Conference of the United States has approved suggested legislative changes that would provide such an exception, and a bill to amend the statute has been introduced in the Congress.⁷ But this only serves to emphasize that if the statute is to be changed, it is for Congress, not for us, to change it.

We conclude for these reasons that under existing legislation a retired circuit judge is without power to participate in an en banc Court of Appeals determination, and accordingly that the judgment must be set aside. American Construction Co. v. Jacksonville, T. & K. W. R. Co., 148 U. S. 372, 387; Frad v. Kelly, 302 U. S. 312, 316-319. In reaching this conclusion we intimate no view as to the merits of the underlying litigation. The judgment is vacated, and the case remanded for further proceedings consistent with this opinion.

Vacated and remanded.

1 141 F. Supp. 58. Two of the libels were dismissed upon the same ground by another district judge in an opinion which is unreported.

2 “Any justice or judge of the United States appointed to hold office during good behavior may retain his office but retire from regular active service after attaining the age of seventy years and after serving at least ten years continuously or otherwise, or after attaining the age of sixty-five years and after serving at least fifteen years continuously or otherwise.”

3 Judge Lumbard did not participate because of a prior connection with the litigation as United States Attorney.

4 In accord with this flexible statutory scheme, retired federal judges the country over have rendered devoted service in the trial and appellate courts of the United States, voluntarily and without economic incentive of any kind.

5 An enlightening discussion by Judge Maris of the thorough administrative machinery worked out by the Court of Appeals for the Third Circuit appears in 14 F. R. D. 91.

6 It is worth noting that the Textile Mills opinion itself carefully distinguished between circuit judges in active service and those who have retired. 314 U. S., at 327.

7 At its Annual Meeting in September, 1959, the Judicial Conference of the United States received a joint report of its Committees on Court Administration and Revision of the Laws, stating their view that under the present law retired judges are not eligible to participate in en banc proceedings. “However, the Committees thought it proper to permit a retired circuit judge to be a member of the court of appeals sitting in banc in the rehearing of a case in which he has sat, by assignment, in the panel of the court which heard the case originally.” The Conference agreed and approved a draft of a bill, presented by the Committees, which would add the following sentence to 28 U. S. C. § 46 (c): “A circuit judge of the circuit who has retired from regular active service shall also be competent to sit as a judge of the court in banc in the rehearing of a case or controversy if he sat in the court or division at the original hearing thereof.” Annual Report of the Proceedings of the Judicial Conference of the United States (1959), pp. 9-10. A bill to effect this change was introduced in the House of Representatives by Representative Celler on April 5, 1960, as H. R. 11567, 86th Cong., 2d Sess. 106 Cong. Rec. 6865.