U.S. v. AMERICAN-FOREIGN SS. CORP.

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Argument of Philip Elman

Chief Justice Earl Warren: Number 138, United States, Petitioner, versus American-Foreign Steamship Corporation, et al.

Mr. Elman.

Mr. 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.

Justice William J. Brennan: Was he active at the time that the Court took proceeding?

Mr. Philip Elman: Yes, Mr. Justice, he was.

Now, the --

Justice William J. Brennan: Now I suppose he participated in oral argument, did he?

Mr. 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.

Chief Justice 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?

Mr. 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.

Chief Justice Earl Warren: I was going to ask --

Mr. 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 --

Justice John M. Harlan: -- you put that entirely clearly if Judge Clark had given the judgment being a formal designation.

Mr. Philip Elman: The day he retired.

Justice John M. Harlan: You still would say he would be disqualified.

Mr. 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.

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.

Justice John M. Harlan: In other words, you read over into the last sentence, occurred and determined by the --

Mr. 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.

Justice 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?

Mr. 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 --

Justice Felix Frankfurter: So the (Voice Overlap) decide that, did it?

Mr. 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.

Justice Felix Frankfurter: There's never been anybody thought about this problem, is there?

Mr. Philip Elman: I couldn't say.

Justice Felix Frankfurter: Well, I mean --

Mr. Philip Elman: So far as this mediocre --

Justice Felix Frankfurter: (Voice Overlap) it didn't say any more -- the opinions don't indicated that, do they?

Mr. 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 --

Justice Felix Frankfurter: No, no.

Mr. Philip Elman: -- perfectly clear --

Justice Felix Frankfurter: I'm not talking about that.

Mr. Philip Elman: And nobody thought of that.

Justice 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.

Mr. 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.

Justice John M. Harlan: Do you think --

Justice Felix Frankfurter: But how can you search whether you did or did not have an active share?

Mr. Philip Elman: We don't think it makes any difference whether he had an active share or not.

Justice Felix Frankfurter: You mean --

Mr. Philip Elman: A retired judge can vote to deny, it doesn't under our view, the statute does not granted --

Justice 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 --

Mr. Philip Elman: Yes.

Justice Felix Frankfurter: -- include a nonactive, a retired judge in this convention sense of (Inaudible)?

Mr. 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.

Justice John M. Harlan: Do you think --

Justice Felix Frankfurter: But if -- if -- if I may include this, but if they're nonactive members, one of the three --

Mr. Philip Elman: Yes.

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

Mr. 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.

Justice Felix Frankfurter: A majority.

Mr. Philip Elman: A majority circuit judge of the circuit not of the panel.

Justice Felix Frankfurter: Well, suppose there are only -- suppose there are only four active circuit judges --

Mr. Philip Elman: Yes.

Justice Felix Frankfurter: -- and two of them sit on the panel?

Mr. Philip Elman: Right.

Justice Felix Frankfurter: And they couldn't grant, could they, a rehearing?

Mr. Philip Elman: If there two or four?

Justice Felix Frankfurter: Two of four.

Mr. 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 --

Justice 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.

Mr. 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--

Justice Felix Frankfurter: Yes, but talking may affect voting.

Mr. Philip Elman: But the statute doesn't bar it.

Justice 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 --

Mr. Philip Elman: We don't --

Justice Felix Frankfurter: -- this Court held that three equals five.

Mr. 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.

Justice John M. Harlan: 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?

Mr. Philip Elman: You say determined, I -- I ask what do you mean grant or deny or both?

Justice John M. Harlan: I mean granted or denied, either one.

Mr. Philip Elman: Well, I don't think that even a judicial counsel with all its broad powers --

Justice John M. Harlan: But as we refer you could do that on the Second Circuit informally for a considerable period.

Mr. Philip Elman: Grant.

Justice John M. Harlan: Yes.

Mr. Philip Elman: We have -- we have never found the case.

We have not found the case of any --

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

Mr. Philip Elman: Well, if that is done, it's done with the concurrence and authorization of a majority --

Justice John M. Harlan: It is.

Mr. Philip Elman: The circuit judges of the circuit -- well --

Justice John M. Harlan: But you say that that could not be done under -- under your view of the statute, you say, “don't agree.”

Mr. 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) --

Justice John M. Harlan: That could be done -- it could be done?

Justice 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 --

Mr. Philip Elman: Well, I think this is --

Justice Felix Frankfurter: -- to grant jurisdiction.

Mr. 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 --

Justice John M. Harlan: May I put his hypothetical to you?

Mr. Philip Elman: Yes, sir.

Justice John M. Harlan: 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?

Mr. Philip Elman: I -- I -- I think I may have -- I may have --

Justice John M. Harlan: Well that's --

Mr. Philip Elman: -- not appreciated your first question because I did not equate the judicial counsel.

Justice John M. Harlan: Well -- I used the judicial counsel as a thumbnail for the --

Mr. Philip Elman: All right.

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

Justice John M. Harlan: All right.

Mr. Philip Elman: -- by the circuit judge, there's no problem.

Justice John M. Harlan: 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 --

Mr. Philip Elman: Very common situation.

Justice John M. Harlan: Could he try -- could he participate in the vote or not?

Mr. Philip Elman: Certainly not.

Justice John M. Harlan: Could not.

Mr. Philip Elman: No.

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

Justice John M. Harlan: That he is --

Mr. Philip Elman: No, no.

Justice John M. Harlan: That he -- could he -- could he vote -- could he vote to grant or deny the petition for a rehearing?

Mr. Philip Elman: Oh, yes.

Justice John M. Harlan: He could.

Mr. Philip Elman: Yes.

That's what I said about.

Justice John M. Harlan: Not sit on the Court.

Mr. 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.

Justice John M. Harlan: 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?

Mr. 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.

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 --

Justice 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?

Mr. Philip Elman: They both -- they both appear in the 1948 Judicial Code.

Justice Felix Frankfurter: Originally?

Mr. 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.

Justice 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.

Mr. Philip Elman: You're suggesting the circuit justice?

Justice Felix Frankfurter: I'm suggesting that --

Mr. Philip Elman: At -- if anyone else Mr. Justice?

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.

Mr. Philip Elman: Now, that would cover --

Justice Felix Frankfurter: Now that is -- that is you cut fine.

Mr. Philip Elman: Well, I don't think that is cutting it fine.

Justice Felix Frankfurter: In other words, in answer to your suggestion --

Mr. Philip Elman: I don't it is cutting it fine.

Justice Felix Frankfurter: That's a suggestion that otherwise a court en banc should consist of all active circuit judges means nothing.

Mr. Philip Elman: But what is the limit?

Justice Felix Frankfurter: It means an indispensible prerequisite.

Mr. 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 --

Justice Felix Frankfurter: In addition -- in addition?

Mr. 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.

Justice Felix Frankfurter: I believe (Voice Overlap)

Mr. Philip Elman: That's another important fact.

Justice Felix Frankfurter: (Inaudible) en banc, Judge Hand.

Mr. Philip Elman: After his -- in the case in which rehearing was ordered after his retirement?

Justice 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?

Mr. 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 --

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

Mr. 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.

Justice 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

Mr. 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.

Justice 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.

Mr. 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 --

Justice John M. Harlan: Well that report, however, it doesn't purport to deal with the particular questions we have here.

Mr. Philip Elman: Well, that --

Justice John M. Harlan: 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.

Mr. 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 --

Justice John M. Harlan: I didn't understand in that way.

May be I read it wrong.

Mr. Philip Elman: Well, it -- it doesn't deal specifically --

Justice John M. Harlan: No.

But that's --

Mr. 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 --

Justice John M. Harlan: I don't see that it's relevant.

Mr. 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.

Justice John M. Harlan: 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.

Mr. 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.

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.

Justice 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?

Mr. Philip Elman: Statute.

Justice Hugo L. Black: Are there any reason to accept the statute, I may ask?

Mr. Philip Elman: The statute -- the statute says --

Justice Hugo L. Black: I am -- I am familiar with the statute, I am --

Mr. Philip Elman: Statute, I think statute says --

Justice Hugo L. Black: -- talking about the practical reasons suggested for one side or the other.

Mr. 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 --

Justice Hugo L. Black: Well then there are -- then they are none that you can take up on either side?

Mr. 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.

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

Mr. 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 --

Justice Felix Frankfurter: Let me be --

Mr. Philip Elman: -- of policy ought to be considered entirely.

Justice 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.

Mr. 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.

Justice 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.

Mr. Philip Elman: Well the --

Justice Felix Frankfurter: It is not world-checking problem, is it?

Mr. 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.

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

Mr. 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.

Justice John M. Harlan: 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]

Mr. Philip Elman: Who can say? [Laughter]

Chief Justice 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.

Mr. 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.”

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.

Justice John M. Harlan: 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?

Mr. 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.

Justice John M. Harlan: Yes, but the Government's deal would be, there's no legal impediment to the Court ordering a new en banc hearing?

Mr. Philip Elman: Certainly not.

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.

Justice Felix Frankfurter: Excuse me.

Mr. 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.

Justice 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?

Mr. Philip Elman: Certainly.

That was referred to the whole Court --

Justice Felix Frankfurter: Yes.

Mr. Philip Elman: -- which is --

Justice Felix Frankfurter: Why should that be vacated?

Mr. Philip Elman: We're not suggesting it should be.

All we're suggesting that it would --

Justice 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.

Mr. 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 --

Justice Felix Frankfurter: I understand that.

Mr. 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 --

Justice Felix Frankfurter: And that would leave specifically?

Mr. Philip Elman: It would leave the order granting rehearing en banc.

There's nothing wrong with that.

Justice Felix Frankfurter: No, nothing wrong.

Mr. Philip Elman: Absolutely nothing.

Justice Felix Frankfurter: I simply want to be satisfied with that.

Mr. Philip Elman: No.

Nothing wrong.

Justice 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?

Mr. 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.

Justice Felix Frankfurter: Yes.

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

Mr. Philip Elman: That's right.

Justice Felix Frankfurter: -- here is that the judgment --

Mr. Philip Elman: That's right.

Justice 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.

Mr. 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 --

Justice Felix Frankfurter: Well, there is (Voice Overlap)

Mr. Philip Elman: Then it wouldn't make any difference what the statute says.

Justice 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).

Mr. 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.

Justice Felix Frankfurter: You didn't say it, that's my word and that's my thought.

Mr. 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.

Justice 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.

Mr. Philip Elman: That's right.

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

Justice Felix Frankfurter: That's what de facto means.

Mr. Philip Elman: That's why --

Justice Felix Frankfurter: That's the problem of de facto judge.

Mr. 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.

Chief Justice Earl Warren: Mr. Fort.

Argument of J. Franklin Fort

Mr. J. Franklin Fort: (Inaudible) Mr. Becker is arguing.

Chief Justice Earl Warren: Oh -- oh, yes.

Mr. Becker, excuse me.

Argument of Arthur M. Becker

Mr. 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 --

Chief Justice 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?

Mr. Arthur M. Becker: No, sir.

I --

Chief Justice Earl Warren: What differentiation do you make?

Mr. 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.

Chief Justice Earl Warren: That's right.

Mr. 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.

Chief Justice Earl Warren: Well, what language do you rely on in 46 (c) to things that that included?

Mr. Arthur M. Becker: Well, Your Honor, I am relying on the entire Section not on 46 (c).

Chief Justice Earl Warren: But you said 46 (c) so --

Mr. 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.

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

Mr. 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).

Chief Justice Earl Warren: May I -- may I just pursue this one question so far --

Mr. Arthur M. Becker: Yes, sir.

Chief Justice 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?

Mr. 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.

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

Justice 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.

Mr. Arthur M. Becker: Well, Your Honor, I --

Chief Justice Earl Warren: You may answer that after --

Mr. Arthur M. Becker: Certainly.

Print this transcript Transcript: 

Argument of Arthur M. Becker

Justice John M. Harlan: (Inaudible)

Mr. 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 --

Chief Justice Earl Warren: Yes.

Mr. 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 --

Chief Justice Earl Warren: Is that the only instance you've ever -- you've been able to find that it was ever done?

Mr. 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.

Chief Justice Earl Warren: Did they grant the rehearing on those cases or denied them.

Do you know?

Mr. Arthur M. Becker: They -- no -- no, this was not a grant of rehearing.

Judge Maris --

Chief Justice Earl Warren: When they acted en banc did they have --

Mr. 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.

Chief Justice Earl Warren: I see.

Mr. 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.

We have also found in addition to that, two -- three cases in the Ninth Circuit which we have called to the Court's attention.

Those three cases are Herzog against the United States.

In those cases, Judges Bauman and Orr heard the case en banc, thereafter, retired and thereafter, participated in the court's opinion.

The other case was United States against Price.

In that case, Judge Healey who was a member of the court en banc that heard the case thereafter retired and thereafter, participated in the court's decision.

Now, there is another case, In re Sawyer, in which Judge Denman had participated in the case but withdrew, he did withdraw.

Judge Hamlin who had been appointed between the time it was submitted and the time it was heard, did not participate.

And I think a fair reading of that case is that this was an individual determination of Judge Denman.

Now, the court pointedly said, the only reason he didn't -- didn't participate was that he didn't want to in every implication particularly since it's bracketed between the two other cases where they did permit the retired judges to participate.

Every implication is, the court said, “Well, if you don't want to, you don't have to.”

But the court did not deny him that right.

And in addition to that, there are two cases in the Fifth Circuit where the court sat on a rehearing, sat to determine whether a rehearing en banc should be granted.

Now, in those cases the point was specifically raised by dissenting judges like it was here as to whether Judge Sibley, who had sat with the court en bank could participate in the decision en bank denying a petition for rehearing.

He did vote, it was denied 3-to-2 with his vote and the other two judges dissented and said, “He had no right to participate and thereto, there were two other judges who had been appointed in the meantime, one to take Judge Sibley's place and one to take Judge Lee's place who had died but had not participated in the original decision because he was ill in the original case.

And the court did not permit these two new judges to participate in the question of whether a rehearing en banc should be granted but did permit Judge Sibley to participate and it was denied 3-to-2 with his vote being decided.

So we have three other circuits.

I think that case is the same in principle as this case.

We have two circuits in which the same question has arisen and be decide this way, a Third Circuit in which a question identical in principle has arisen and to decide it this way.

And then also in the Third Circuit, you have the case of the judges -- of the active judge from one circuit sitting by assignment and that leads to the same result.

So, every case, now, it's very difficult to say we have every case Your Honor because they're not -- they're not normally classified.

We found them by leafing through the books but I had two people doing that for six months and done it myself.

My colleagues had done the same thing and the Government has with every case any of us have found all went that way in every single circuit.

Chief Justice Earl Warren: However, they didn't sit.

You -- you couldn't find them in their seats.

Mr. Arthur M. Becker: Well, no sir but -- but we did look -- we did -- we did try to.

We -- we took the list of the retired judges and --

Chief Justice Earl Warren: I see.

Mr. Arthur M. Becker: -- and we went through it as well as we could.

We may have missed it because --

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: --as you see if --

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: -- it's not classified it's a rather difficult --

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: -- situation.

Justice John M. Harlan: Would you mind giving me the names of those three cases.

I just want to check them off in the --

Mr. Arthur M. Becker: They're -- they're in the --

Justice John M. Harlan: Those three cases you were referring to.

Mr. Arthur M. Becker: Well, there -- there nine.

And you mean in the Ninth Circuit?

Justice John M. Harlan: Yes.

Mr. Arthur M. Becker: The Ninth Circuit the three cases are, Herzog against the United States, In re Sawyer --

Justice Charles E. Whittaker: In re what?

Mr. Arthur M. Becker: In re Sawyer, S-A-W-Y-E-R, In re Sawyer and they are referred to on pages 21 and 22 of my main brief.

And the Third case with the Ninth circuit is United States against Price and that is referred to on page 4 of the Government's reply brief and on page 2 of my supplemental brief.

Those are the three Ninth Circuit cases.

The Third Circuit cases and I want to emphasize this because I have always disagreed with -- with the Government's interpretation of Judge Maris' views.

They say Judge Maris would have denied that, he never said that.

He spoke of active judges participating generally but he never -- he never spoke of this situation where the judge was designated and assigned to the court before he retired.

Now, therefore I want to particularly stress the two cases that arose in the Third Circuit because there, (Inaudible), appear on page 4 of the Government's reply brief and C-O-R-E-B-I, Corebi against the Auto Racing Company which is also on page 4 the Government's reply brief.

And they are on page 2 of my supplemental brief.

Now, and though both of those cases the judge retired after participating in the -- after hearing the case en banc was Judge Maris.

And he himself thereafter, voted with the court and participated in its decision just like Judge Medina did in this case.

So I do think that our interpretation of his views is correct rather than the Government's interpretation of his use of some general statements he made.

Justice Charles E. Whittaker: Was there any attack upon that action?

Mr. Arthur M. Becker: No, sir, there was not.

The question -- the -- the only case in which I know of in which the action of the judge was ever attacked in participating was in this case and also in the two Fifth Circuit cases where Judge Sibley participated in denying where his vote was decisive, after he retired in denying a petition for rehearing en banc.

And that was the case where the court sat en banc to deny the petition for a rehearing en banc.

And in that case the dissenting judges in both of those cases attacked his right to sit on the court.

Those are the only cases that I know of or I think the Government has made a similar statement in its brief that they know of in which the -- in which the question was actually discussed.

Now I'd also like to make one other point.

I think it is very clear that the Western Pacific Railroad Case, that in Western Pacific Railroad case, this Court held that the majority of the active judges of the circuit could delegate authority to a panel either to deny or to grant a petition for rehearing en banc and that was specifically before them that the panel in that case consisted of two district judges and one circuit judge.

As a matter of fact, the majority of the opinion noted that fact and said that's why this -- now, if I might go into the Western Pacific Railroad case a little more because I think it's terribly important to this problem.

What happened there was, the majority of the courts -- the Court Of Appeals said, “We will not pass on a petition for -- for a rehearing en banc.”

This is a question for the panel.

The panel said or -- or this Court interpreted the panel as saying, “We think we're without authority in law to determine whether a petition for rehearing en banc should be granted.”

Judge Vinson who wrote the majority opinion said, “This panel consisted of one circuit court judge and two district judges.”

He said that specifically but it was the Court of Appeals, nevertheless.

And we -- we hold that the -- that the majority of the active judges could determine to abide by the decision of this panel by entrusting the question of whether a rehearing en banc should be granted to them.

And we know that two of the judges are in this panel were district judges and perhaps that's why they thought they had no authority to act so we're sending the case back because we think they could have acted or they said, “The court if it liked, the active judges could themselves have decided the petition.”

But in any procedure, the majority of the active judges decide this perfectly call of right.

They can either delegate their whole authority to this panel with two -- two district judges and one circuit judge or they themselves can adopt the procedure whereby they will decide whether a rehearing en banc should be granted.

And I --

Chief Justice Earl Warren: But does it follow that -- that they can have -- sit with them en banc anyone they want?

Mr. Arthur M. Becker: Well.

I don't know, Your Honor but I'm -- I'm rather inclined to think it does because the broad rationale of the -- of the Western Pacific Railroad Case was, that it's a grant of power to the Court of Appeals to decide -- devise any acceptable procedure.

Now, I don't think there's any difference between the active judges who the statute says can determine whether a petition for rehearing en banc should be granted and the active judges who may sit with the court.

And I think the one follows with the other and it's a logical -- there's also many other reasons why I believe that's true but there's a logical compactness with it.

Certainly, the judges who can vote, grant a rehearing or designate as judges in active service are precisely the same category of judges who can preside on it.

Now, I think the Western Pacific Railroad case said, as I interpret it, “The active judges of a circuit are primarily members of the Court of Appeals.

They must be consulted.

They must be members of a court en banc and the legislative history shows us.

That's why it said all active judges of the circuit shall constitute or a court en banc shall consist of all active judges of the circuit.

If they wish to call someone else in or they wish to delegate part of their authority, they can do so and I think that avoids the reductio ad absurdum that Mr. Elman spoke up.

In other words --

Justice John M. Harlan: Or if they're going -- excuse me.

Chief Justice Earl Warren: No, no.

Go right ahead please.

Mr. Arthur M. Becker: Sir.

Justice John M. Harlan: Calling somebody else in to sit.

Mr. Arthur M. Becker: That's right.

Justice John M. Harlan: And allowing somebody who is not an active judge of the circuit to sit on the petition, are two different things.

In order to support your broader proposition, you have to read the last sentence saying that a court en banc shall include all active --

Mr. Arthur M. Becker: That's right.

Justice John M. Harlan: -- circuit judges instead consist of.

Mr. Arthur M. Becker: That's right.

Well --

Justice John M. Harlan: That's your proposition.

Mr. Arthur M. Becker: -- well that's what I -- that's what I do think.

Now, Your Honor --(Voice Overlap)

Justice John M. Harlan: You don't have to go far that --

Mr. Arthur M. Becker: -- I would like to point out that I don't -- I don't think that this precise problem because there's no -- in this case, there's no disagreement as to a judge who has been assigned.

Justice John M. Harlan: I don't see why you'd take on more baggage enough to --

Mr. Arthur M. Becker: Well I -- I don't wish to accept.

I was trying to answer some of the questions but that I -- I don't think we have to go that far that's quite correct and I don't --

Chief Justice Earl Warren: But if you're going -- if you're not going to go that far, how -- what language do you -- do you rely on in 46 (c)?

What -- what permits you to differentiate between the judge and judgement on his position and -- and one who is assigned from --

Mr. Arthur M. Becker: Well, simply this Your Honor.

Chief Justice Earl Warren: -- not only to this circuit or --

Mr. Arthur M. Becker: Well, I think --

Chief Justice Earl Warren: -- or for the District Court to --

Mr. Arthur M. Becker: I think section 46 (c) refers to the times the court is constituted.

Chief Justice Earl Warren: The what?

Mr. Arthur M. Becker: The time that the court en banc is constituted not to a subsequent time.

This is a section -- the entire Section 46 refers to the -- gives authority to the Court of Appeals to assign its work and distributed among its member and to constitute itself into divisions or into a court en banc.

Now, if the court is lawfully constituted at that time, a subsequent change in status of one of its members does not render him incompetent to sit.

Now, Your Honor this is not a new question.

This has come up in literally dozens of cases where a jurisdictional statute in addition to those I've cited, the precise cases, en banc cases I've cited.

There were literally dozens of cases where a jurisdictional statute says, “A judge may sit with the court while a vacancy exists.”

The vacancy is filled and under the literal language of the statute, he has no authority.

In every single one of those cases and there I do believe, we've read every single one of them.

The courts have held that the statute should be interpreted to refer to the constitution of a court at the time it's convened.

And they said if a judge no longer has authority that refers to new cases, not to cases which have been committed to the consideration of a court while he was a member of a court.

That rule of statutory construction, the cases were collected in -- the cases were collected in District of Columbia case of all these various jurisdictional statutes (Inaudible) which we've cited here.

They quote the language of the statute.

It's always peremptory in form that says he has authority up to this point and in every case state and federal, the courts have said, “This does not stop a judge who is lawfully a member of a court for completing a case which he heard as a member of the court."

I'd like to point (Voice Overlap).

Chief Justice Earl Warren: And would you say that applied to this Court?

Mr. Arthur M. Becker: Yes, sir.

Yes, sir.

There's no --

Chief Justice Earl Warren: Have you found --

Mr. Arthur M. Becker: -- are found --

Chief Justice Earl Warren: -- found any instances where it has been for --

Mr. Arthur M. Becker: Well, we --

Chief Justice Earl Warren: -- for you?

Mr. Arthur M. Becker: Well, Your Honor, we found or -- or you mean this -- I'm sorry, you mean the Supreme Court?

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: Oh -- no, Your Honor.

I -- I would not say it applied to this Court because I --

Chief Justice Earl Warren: What do you think --

Mr. Arthur M. Becker: -- I think there is --

Chief Justice Earl Warren: -- the distinction from the point (Voice Overlap) --

Mr. Arthur M. Becker: Well as a matter of --

Chief Justice Earl Warren: (Voice Overlap) that you attest that --

Mr. Arthur M. Becker: I think -- I think --

Chief Justice Earl Warren: -- that instrument.

Mr. Arthur M. Becker: -- that in the retired judges, it says --

Chief Justice Earl Warren: Beg your pardon?

Mr. Arthur M. Becker: I think with respect to retired justices in this Court if my memory serves me right, the statute says they shall not participate thereafter, in -- in any decisions of the Supreme Court after they retire.

I think there is a special --

Chief Justice Earl Warren: Where -- where is that?

I -- I'm not quite familiar.

Mr. Arthur M. Becker: Well, I -- I haven't got of the statute before me --

Chief Justice Earl Warren: I beg your pardon?

Is there -- would you -- would you send that to us?

Mr. Arthur M. Becker: Yes, I will.

I think there is a -- I think there is a specific well -- more than the assignment statute.

It says they can never thereafter be assigned to the Supreme--

Chief Justice Earl Warren: Oh, I know, but you say the assignment has already taken place that they -- that they --

Mr. Arthur M. Becker: Well --

Chief Justice Earl Warren: -- sat and it was assigned to them --

Mr. Arthur M. Becker: Yes.

Chief Justice Earl Warren: -- and they worked on it and so forth but didn't do it -- it didn't -- the judgement didn't come down by the time they retired.

Mr. Arthur M. Becker: Well.

There maybe another policy but I don't know -- I do -- my offhand reaction was that there -- there is probably a policy for justices not to participate after they retired from the Supreme Court.

Chief Justice Earl Warren: You think it's only a matter of policy?

Mr. Arthur M. Becker: Well, I think there's a policy by recollection as indicated in the -- in these sections of the statute.

Justice Felix Frankfurter: Well, now let's see if I understand --

Mr. Arthur M. Becker: But I -- I don't know.

I haven't examined that question.

I have --

Justice Felix Frankfurter: The Chief Justice's questions was whether the principle that -- what you said was the prevailing body of judicial authority that when a man is a new member of -- has jurisdiction to sit in a case which is terminable on some condition to be fulfilling a vacancy and so on.

He may continue to sit after the condition of his temporary appointment has come to an end, is that right?

Mr. Arthur M. Becker: That's, right.

That's right.

Justice Felix Frankfurter: The Chief Justice, as I understood him, then asked, does that apply to the -- this Court, the Supreme Court of the United States so that a member of this Court having heard the argument, participated at conference and as has been the case even drafted an opinion in which the court joined.

If thereafter, if he retires before there's an actual announcement of the decision of a Monday, he can no longer participate in it.

I think there is certainly one or two cases in which this Court has said this is substantially the opinion which was written by Brother Jones and the Court now adopts it.

But he himself ceases to be -- he is faultless if he's not actually physically in service as a member of the Court on the given Monday when the case is ever done.

I thought you said you thought there was a specific result.

Mr. Arthur M. Becker: Well I did but I --

Justice Felix Frankfurter: -- from the statute.

I should be greatly surprised of that result.

Mr. Arthur M. Becker: Well, I -- I think Your Honor, I was referring to the statute with respect to the subsequent assignment for designation of -- of a justice of this Court.

Justice Felix Frankfurter: You mean as a circuit justice, isn't it?

Mr. Arthur M. Becker: Yes, that -- that the statute says it even designated the courts other than the Supreme Court as I believe assigned to them.

Justice Tom C. Clark: Because I asked for this, I thought it's just affirmatively --

Mr. Arthur M. Becker: That's right.

Justice Tom C. Clark: I think that's the closest field down their (Inaudible) --

Mr. Arthur M. Becker: I think so.

Yes -- yes I think that's quite right but -- but it seems to imply that he can only get the designated or assigned to those courts and not to the Supreme Court at (Voice Overlap) --

Justice Felix Frankfurter: All you can say is that so far as this Court is concerned, once a judge resigns or retires -- that he retires, he can no -- he is no longer an active -- I'm not questioning -- he's no longer potentially capable of functioning on this Court.

Mr. Arthur M. Becker: I think that's correct.

Justice Felix Frankfurter: But in the case of retiring -- retiring or retired circuit judges, putting this thing aside, they do continue to exercise -- they may exercise all the functions they did regarding this problem here, the day before they retire.

Mr. Arthur M. Becker: That's right.

Justice Felix Frankfurter: But he's still a member of the collegium or collectivity that constitutes --

Mr. Arthur M. Becker: That's right.

Justice Felix Frankfurter: -- the court whereas that is not the one we tried.

Well, just --

Mr. Arthur M. Becker: That's right.

I think in a sense, a retired justice of the Supreme Court is no longer really a -- a member of the Supreme Court.

Justice Felix Frankfurter: That wouldn't really -- he isn't one.

Mr. Arthur M. Becker: Well, then that's -- that -- that I think is the distinction whether a retired judge of a Court of Appeals is a member of a court.

Chief Justice Earl Warren: Well is he?

Is he?

Now, what -- what does 43 (b) say?

It says, “Each Court of Appeals shall -- shall consist of the circuit judges of the circuit --

Mr. Arthur M. Becker: That's right, sir.

Chief Justice Earl Warren: -- in active service.

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

But it does not say that they are still members of the Court.

Mr. Arthur M. Becker: Well, Your Honor the reason I said they were is this -- that is precisely what this Court said in the Textile Mills case.

In that case, the same statute said, the circuit justice is competent to sit as a member of this Court and this Court held that he was therefore a component part of the Court although the circuit judges were primarily members of the Court and I was adopting the language this Court said.

This Court said that because the circuit justice was qualified -- was competent -- precisely the same language was --

Chief Justice Earl Warren: By assignment.

Mr. Arthur M. Becker: -- was competent to sit as a member of the Court.

He was therefore, was competent to sit as a judge of the Court.

He was therefore, a component part of the Court.

Chief Justice Earl Warren: That's for the -- for the purpose and which assigned.

Mr. Arthur M. Becker: Well, it used the word component part.

I was using the same language.

I didn't -- did want to make --

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: -- any distinction.

I was using the same language this Court had used.

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: But in the Textile Mills case, this Court did say that.

I believe I have it -- I have it in my -- well, yes, here it is.

It was in a footnote.

It says, “In this connection, it should be noted that Section 120 of the Judicial Code makes the Chief Justice and associate justices of a Supreme Court assigned to each Circuit competent to sit as judges of the Circuit Court of Appeals within their respective circuits.”

That's why the Circuit Court of Appeals is composed primarily of circuit judges, the circuit justice is made a “component part” of that Court.

And I -- I --

Chief Justice Earl Warren: That -- would that lead to you to believe that the circuit justice is -- is an active judge of the --

Mr. Arthur M. Becker: No sir.

Chief Justice Earl Warren: -- of the Court?

Would he -- could he sit as a --

Mr. Arthur M. Becker: Yes sir.

Chief Justice Earl Warren: -- en banc?

Mr. Arthur M. Becker: I think he could, sir.

I think that's what Textile Mills held.

Now, I'd like to go into the legislative history of this a little bit.

And I think that's precisely --

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: -- what they tried to enact.

In the Textile Mills case, you utterly recall, the question was of course whether the Court could sit en banc.

And in reaching the conclusion that it could sit en banc, this Court said it's obvious that the three-judge limitation cannot be applied liter -- applied literally because some circuits have more than three judges.

It also said and that's a remark I was just reading from.

In this connection, it should be noted that the Chief Justice and associate justices are also competent to sit as members of the Court.

They're component parts of the Court and in its decision, it equated competency to sit on the Court with competency to perform its most important function, to decide cases and therefore said, all judges competent to sit on the Court are competent to sit en banc and decide a case.

Chief Justice Earl Warren: And do you believe that there are -- are three or four retired members of the Court of Appeals in a large circuit and the chief judge also brings in -- in two or three outsiders to sit in certain litigation that all of them can sit with the active members of the court en banc?

Mr. Arthur M. Becker: If the active members of the Court decide that they want him to because the authority to assign judges to the Court in its divisions resides in the active judges of a court under Section 46.

Chief Justice Earl Warren: In other words, it's -- is it your opinion that -- that whenever a judge is assigned to -- to perform duties in the Court, that for all purposes, he becomes an active member of the Court?

Mr. Arthur M. Becker: No sir.

He becomes competent to sit as a judge of the Court not an active member of it and I say -- what I'm saying is --

Chief Justice Earl Warren: Then how do you read out the active members?

Mr. Arthur M. Becker: Well -- well, I'm not quoting it out.

Chief Justice Earl Warren: (Voice Overlap)

Mr. Arthur M. Becker: The active members of the Court of -- on -- I'm adopting the same view this Court did in the Textile Mills case.

The active members of the Court are primarily the Court.

They're defined as such.

They have the authority of assigning to the Court and its divisions any judge or justice who is competent to sit as a member of the Court.

And I say that the active judges of the Court have the power if they desire to call in -- to take any judge who's competent under Section 43 (b) and permit him to sit on a court or its divisions or with the -- with the active judges en banc.

I think that's the plain meaning of the statute.

And I think also, it's what -- it's what was intended.

I'd like to point this out, Your Honor that there is -- there is considerable legislative history on this which indicates that was intended.

Now, as I pointed out before in answer to Mr. Justice Frankfurter's question, Section 120 made only the chief justice and the associate justice -- justices of the Supreme Court assigned to each circuit competent to sit as judges of the Circuit Court of Appeals.

Then the district judges could sit to fill out a three-judge court.

That -- that obviously was not involved here.

Now, when 43 (b) was revised, the revisers in their notes -- the revisers in their note provided that the provision of Section 212 of Title 28 U.S.C. for a three-judge Court of Appeals was permissive and did not limit the power of the Court to sit en banc.

Thus, Subsection (b), and that's the section I'm talking about.

Thus, Subsection (b) reflects the present status of the law, namely that the Court is composed of not only circuit judges of the circuit in active service or whom there more -- be more than three.

But the circuit justice or justices and judges who maybe assigned or designated to the Court, see Textile Mills Security Corporation v. Commissioner of Internal Revenue.

And all the revisers did when they revised 43 (b) was include the new class of judges who could be designated and assigned to the Court and gave them the same competency, and intended to give them the same competency to sit with the Court en bank that this Court held the circuit justice had under the former Section 120.

Justice John M. Harlan: What page is that quoted on your brief, Mr. Becker.

Mr. Arthur M. Becker: Yes sir.

It's quoted on Section 35 and 36.

Now, the Reviser's Note is at the bottom of 35 of my main brief.

And now -- now, Your Honor, I would like to call your attention to this case of (Inaudible).

I think it's very important because it correlates all the cases in which there were mandatory jurisdictional statutes.

And in that case, the Court pointed out and that's on page 27 of my brief.

I have that.

The Court pointed out, this was the Court of Appeals in the District of Columbia.

“That it was authorized to call in a justice of the Supreme Court of the District of Columbia to sit with the Court while a vacancy exists.”

Then it says, that's on page 27, “Between the submission of a case and its final disposition, weeks may intervene.”

And it goes on and says --all right, yes.

“And if during that period, the justice whose place the additional justice had taken must remain -- remain away from the Court although ready to act, it would greatly impede, the dispatch of the public business here.”

Ever since the organization of the Court, it has been the practice for the additional justice to participate in the opinions and judgments in cases argued before the Court while he was on the bench although the regular justice whose place he had been appointed to fill had returned to his duties before the judgments ran out.

The right of the additional justice to do so has never been questioned by anyone so far as we know.

Now, they point out --

Chief Justice Earl Warren: Well that's provided by statute, isn't it?

Mr. Arthur M. Becker: No, sir.

The statute says he can sit while the vacancy exists and this is the case where he no longer can sit because the judge whose place he was filling has returned and the Court says, nevertheless, he can't sit.

Chief Justice Earl Warren: Well, wouldn't -- wouldn't the Section 296 --

Mr. Arthur M. Becker: Well, the -- these are --

Chief Justice Earl Warren: -- apply to it?

Mr. Arthur M. Becker: Sir, these are -- these are cases under other -- these are cases under other jurisdictional statutes.

No, this was before 296.

Chief Justice Earl Warren: Before 296.

Mr. Arthur M. Becker: Yes, sir.

And the --

Chief Justice Earl Warren: But there are some -- some special statutes about who can sit and how they can act in the District of Columbia, are there not?

Mr. Arthur M. Becker: Well, there were then.

Now, the district -- the Court of Appeals for the District of Columbia is a Circuit Court of Appeals just like the other circuits.

Chief Justice Earl Warren: Well, I know but there are certain --

Mr. Arthur M. Becker: Yes, sir.

Chief Justice Earl Warren: -- judges that can --

Mr. Arthur M. Becker: That's right.

Chief Justice Earl Warren: -- who -- who are here, who can sit in the --

Mr. Arthur M. Becker: That -- that's quite correct, Your Honor.

Chief Justice Earl Warren: -- in the District of Columbia who cannot sit in -- in other parts of the country.

Mr. Arthur M. Becker: That's quite correct.

But -- but Your Honor, -- that -- that was not the point before the case here.

The point here was, they were discussing actually the general effect of jurisdictional statutes under which an authority of a judge has ended.

They said --

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: They said the authority has ended and they went through all the state statutes and said it doesn't matter.

Every court, they pointed out there are courts always interpret such statutes as permitting a judge to finish a case he heard as a member of the court en bank or as a member of the court.

Chief Justice Earl Warren: Member of the Court, yes.

Mr. Arthur M. Becker: A member of the Court even though his authority ended.

Chief Justice Earl Warren: I know Section 296 says that specifically.

Mr. Arthur M. Becker: Yes it does.

That's right.

And I think that supports the position of the Court below.

Chief Justice Earl Warren: But I -- I still don't see how you equate that to making him a member of a -- an active member of a court which is defined by the statute as being those -- those judges who are active judges of the circuit.

Mr. Arthur M. Becker: Well, that -- that's quite right.

What I -- what I'm saying is, I adopted the language of this Court.

And I think more properly speaking, I'd say that Section 43 (b) makes him competent without qualification to sit as a member of the Court and that's what -- that's really what I meant.

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: And I was using this Court's language because they said it's a component -- you say it's a component part of the Court.

Justice Hugo L. Black: Your -- your chief argument is really on the Textile Mills statement, isn't it?

Mr. Arthur M. Becker: No, sir.

Our chief argument is -- that's one of our arguments.

The chief argument is on the point that a judge's -- that a judge's authority does not end as a member of the Court that a -- when his general authority ends, he is always permitted to decide cases that he heard as a member of the Court.

That's our chief point and we found that every case in every state has decided that way.

Justice Hugo L. Black: But of course that wouldn't be true if the statute said otherwise.

Mr. Arthur M. Becker: Well, if (Voice Overlap) the statute isn't clear and unambiguous terms said or otherwise, I assume it would not be true but the Courts have been always refused to interpret a statute that way unless it was very clear that the legislature had so intended.

As a matter of fact, I only -- though I've said that I know of no case in which they actually have so held and I think I've read all.

They've always said the language is not clear enough so as to lead us to believe that the legislature intended so capricious a result, a result which would so -- as to badly interfere with the administration of justice as to take a judge who heard a case off the court.

Now, they -- they have said that the legislature's intention was unmistakable.

We hold the other way.

But in the most mandatory statute, they said, “We don't believe it.”

And they've even said, “We don't believe it even when the language literally says that.

We don't believe that's what Congress intended.

Justice Felix Frankfurter: Your argument is that this -- that Judge Medina was a member of a court en bank which consisted of all active circuit judges of the circuit.

Mr. Arthur M. Becker: That's right.

Justice Felix Frankfurter: And that that is not cut down by the first sentence, shall be heard and determined who are in active service.

Mr. Arthur M. Becker: That's right.

Justice Felix Frankfurter: That's the short of the argument.

Mr. Arthur M. Becker: That's right.

Justice Felix Frankfurter: If you don't read -- you don't qualify the last sentence by the fact that the purpose of the -- the function of court is to determine, you read quite -- quite -- you read literally but for the court en bank should consist of all active circuit judges in the circuit that it so consist -- your reading.

Mr. Arthur M. Becker: Well, oh yes.

Also Your Honor, we think that the judges who were assigned must determine it.

But we don't think that the status of the judges may -- must be the same.But of course the function of a court is to determine cases but we say the justice in the other jurisdictional statutes are the change in status of the judge, did not disqualify him.

We say that change in the status of Judge Medina did not disqualify him.

Justice Felix Frankfurter: Well he wasn't an active --

Mr. Arthur M. Becker: That's right.

Justice Felix Frankfurter: -- in the technical sense, he was not an active judge.

Mr. Arthur M. Becker: That's quite right.

Justice Felix Frankfurter: And he participated in the decisions.

Mr. Arthur M. Becker: That's right.

Justice Felix Frankfurter: He was an active judge when the Court was constituted and you rest on that, on the literal translation of that last -- meaning of the last sentence.

Mr. Arthur M. Becker: That's right.

Chief Justice Earl Warren: Well, I wonder how you -- how you justify the case that you mentioned a little while ago where you say two -- two judges sat on the -- on the case and then retired later and their positions were filled before the decision was rendered.

Mr. Arthur M. Becker: That's right.

Chief Justice Earl Warren: And the two who were -- who filled the positions were barred from service --

Mr. Arthur M. Becker: That's Right.

Chief Justice Earl Warren: -- on the court.

And the old -- old ones were permitted to act.

Mr. Arthur M. Becker: Well, but say --

Chief Justice Earl Warren: Now, how -- how can -- how could you read those two new --

Mr. Arthur M. Becker: Well, because -- because, Your Honor --

Chief Justice Earl Warren: (Voice Overlap) on that of statute if the statute says all active members of the court.

Mr. Arthur M. Becker: Your Honor, that's precisely -- that was precisely the point of Judge Hincks' opinion and I agree with it thoroughly.

For almost a hundred years, this Court starting with the case in the United States against Kirby which I've cited has said that statutes which lead to an absurd and unreasonable result should not be literally read so as to read to that -- lead to that result.

They said, “We are not to interpret such statutes.

We want to make exceptions.

We need exceptions into them.”

Now, even the dissenting judges in this case who felt that they were compelled by a -- what I consider a pseudo literal reading of Section 46 (c) to object that Judge Medina is sitting on a court said, “They regarded judges in his position, their --their participation in such cases as desirable and beneficial but they doubted the wisdom of excluding a judge who had sat on the court from -- from participating in its decision.”

And I think under those circumstances, following the traditional way in which this Court has interpreted the legislation, this sort of an exception or this sort of a policy should be read into it.

We ought not to say that if in other cases, it would lead to a bad result, we can cross those bridges when we come to it but we are not to say now that where it would lead to an obviously good result, we should bar the judge from sitting.

And I think that's what every court has done in four circuits.

They've always done that.

They have never let the new judge come in because that would obviously require a rehearing.

How can he come in as a sort of second class member of a court?

He has to know what went on to intelligently decide the case and they won't bar the old judge from participating in the case.

Every single case has said that.

Now, I -- I don't want to take all the time because --

Justice John M. Harlan: On the first sentence of 46 (c), supposing that and read the toward a division of not more than three active judges.

Would your position be any different with respect to the competency of a retired judge to participate in this?

Mr. Arthur M. Becker: No, sir, I think it's exactly the same because I want to point out and I want to point out that in this connection, there's another statute which says that no retired judge shall perform any judicial duties without being designated or stand assigned.

And we pointed out that Judge Median decided 36 cases, three-judge cases without a designation of assignment.

Judge Magruder decided 25.

Justice John M. Harlan: Well, the Government makes no point about that.

Mr. Arthur M. Becker: Well, yes but I think it's a relevant point because it seems to me it's the same principle.

There, a statute in mandatory terms as the -- a judge shall perform no judicial duties and yet -- yet he's been permitted to because it was a sensible and wise thing to do if he heard the case in every one of the circuits.

This has arisen in 10 of the 11 circuits.

Justice John M. Harlan: (Voice Overlap) --

Chief Justice Earl Warren: Have that been considered -- had that been considered by the courts?

Mr. Arthur M. Becker: Well, I don't --

Chief Justice Earl Warren: And argued as to whether -- whether any judge can sit on --on any federal court without assignment unless he is the judge of that Court?

Mr. Arthur M. Becker: Well, Your Honor please, I -- I don't think it's ever been discussed.

It is -- it's not before this Court now in the Goldfine case in a petition for certiorari.

Well, I have -- I have cited in there cases in 10 of the 11 circuits in which -- in which the practice has been followed.

And those are the only cases --

Chief Justice Earl Warren: Well -- well, then this language in 43 (b) is -- is -- supporting to you and might just as well -- just as well write it out (Inaudible).

Thus, in the -- each Court of Appeals shall consist of the circuit judges of the circuit in active serve -- service.

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

Now, if they -- if they don't have to be designated or assigned, what is that language for?

Mr. Arthur M. Becker: Well -- well, the Government explained this to the court below saying that designation and assignment was a designation and assignment that took place before they retired, their assignment to the case.

That's what the Government said to the court below.We have that quoted in -- that statement quoted in our brief.

And that apparently is the theory.

That's how they explained the theory that if the judge has been designated and assigned to a case before he retired, his designation and assignment (Voice Overlap) --

Chief Justice Earl Warren: Yes, I know but you're talking about doing it in 30 cases, and part of one judge and 25 (Voice Overlap) --

Mr. Arthur M. Becker: Well, that's exactly what happened.

We have the cases.

Chief Justice Earl Warren: Well, I know it happened but I'm -- does that make it right?

Mr. Arthur M. Becker: Well, Your Honor, yes because they were assigned -- they were assigned to all these cases before they retired.

These are all cases in which they -- they were assigned.

Chief Justice Earl Warren: Well, but they didn't -- but they didn't complete?

Mr. Arthur M. Becker: But they didn't complete.

Chief Justice Earl Warren: Oh, I didn't -- I didn't' (Voice Overlap).

Mr. Arthur M. Becker: I'm sorry.

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: These were all cases in the same position as --

Chief Justice Earl Warren: Oh, yes, yes.

And I thought you --

Mr. Arthur M. Becker: No, no.

Chief Justice Earl Warren: -- were talking about new cases --

Mr. Arthur M. Becker: Oh no, no.

Chief Justice Earl Warren: -- after they retired.

Mr. Arthur M. Becker: No, no, Your Honor.

These are cases in which they were assigned.

Chief Justice Earl Warren: Yes.

Mr. Arthur M. Becker: That's why I think the parallel exist (Voice Overlap) between.

Now, the only other point I want to make --

Justice Potter Stewart: But Mr. before you leave that, how can -- how can a litigant ever know or how can a reader of the Court's opinion ever know whether or not the retired judge was designated and assigned.

There's nothing in the statute when this is all within the circuit when it's -- when it's a matter of the chief circuit judge designating a retired circuit judge of that circuit to sit that there's nothing in the statute requiring that that be in writing, isn't it?

Mr. Arthur M. Becker: Well, I think there is Your Honor.

I think that there --

Justice Potter Stewart: I'd like to -- I have the --

Mr. Arthur M. Becker: Yes, I'll give that to you.

Well, the second paragraph of 2 -- of 295 says all designations and assignments of justices and judges shall be filed with the clerk and entered on the minutes of the courts from and to which it's made.

Justice Potter Stewart: Well that -- that involves inter-circuit designation, doesn't it?

Mr. Arthur M. Becker: Well, I think it involves both I would assume.

There's nothing that indicates --

Justice Felix Frankfurter: But Judge Magruder sat in other circuits, didn't he?

Mr. Arthur M. Becker: In --

Chief Justice Earl Warren: Yes.

Justice Felix Frankfurter: Judge Magruder sat outside of the First Circuit.

Mr. Arthur M. Becker: Yes, but in the First Circuit, he sat in 25 cases in those --

Justice Felix Frankfurter: That I know, but my point is, did Judge Magruder sit in other circuits beginning the case when he was still in active service and concluding when he had retired.

Mr. Arthur M. Becker: No, sir.

Not --

Justice Felix Frankfurter: On First Circuit and he sat in cases in which he sat as a -- unquestionably an active judge.

Mr. Arthur M. Becker: That's right.

Justice Felix Frankfurter: But the decision wasn't determined until after he had retired.

Mr. Arthur M. Becker: That's right.

And there are 25 of those.

Now --

Justice Potter Stewart: Do you say that's the second paragraph of -- of 295?

Mr. Arthur M. Becker: Yes, sir.

Justice Potter Stewart: And where does that appear, it's not the appendix in (Voice Overlap) --

Mr. Arthur M. Becker: No, no it is not because if -- it's in the --

Justice Potter Stewart: Well, it's in the Code.

Mr. Arthur M. Becker: It's in the Code.

Justice Potter Stewart: Right.

Mr. Arthur M. Becker: And -- that's the only point my opponent -- my colleague will discuss the thing.

Chief Justice Earl Warren: Mr. Fort.

Argument of J. Franklin Fort

Mr. J. Franklin Fort: Your Honors please.

My argument will have to be cut down some but what I would like to deal with primarily is the question of what is the practical solution to this problem.

In both the Textile Mills case and the Western Pacific case, this Court has held that there is considerable liberality in the constitution of en -- en banc courts and that -- that any interpretation of the statute which will aid in the smoother administration of justice should be adopted.

Now, we think that taking the date of the --

Justice Felix Frankfurter: That's a rather broad statement, Mr. Fort.

That means that whatever we think is desirable to the new administration of justice, allows us to determine the scope and authority of judges.

Mr. J. Franklin Fort: Well, Your Honor, it --

Justice Felix Frankfurter: It might be highly desirable for that to -- it will --

Mr. J. Franklin Fort: It was a broad statement but -- but in -- in Textile Mills, it was stated that if there is any ambiguity or doubt about the statute that the interpretation which reaches a practical result is the interpretation.

Justice Felix Frankfurter: Or you could create an ambiguity that reaches a very undesirable result.

Mr. J. Franklin Fort: Your Honor, in picking the date on which the en banc court is constituted, we think that there will result certainty insofar as the judges themselves are concerned and as well as the litigants in the course of the completion of the case.

Any judge who becomes a member of the en banc court will know that the work that he does on the case and will be accepted or considered that whatever -- whatever his views are, they will be considered by the other judges and that his -- his views will be considered in the final decision whether it be as a part of the dissent or a part of the majority.

The rule in respect to district judges and in respect to panel judges clearly is that they shall be permitted to continue with the consideration of any case which is given to them to decide irrespective of whether they retire or not and that they can finish the judicial business and we feel that this rule which seems to be of universal acceptance should be accepted from the point of view of the en banc courts.

Again, from the point of view of the litigants, as the court below pointed out, if the Court must be reconstituted every time there is a change in the constitution of the group of judges in the circuit, then questions will arise concerning re-argument, resubmission of briefs and it will no doubt delay the completion of the en banc consideration of the case.

Justice John M. Harlan: This is not a very powerful argument really because if the rule went as the Government would have it, it's not a very serious matter to a judge sitting on a case to accommodate his retirement to the finishing of the (Voice Overlap).

Mr. J. Franklin Fort: Well, Your Honor, I don't accept that argument.

I -- I don't think that a judge can feasibly accommodate his retirement to the completion of a case which is uncertain and I think this case is an excellent example of that because the en banc consideration began in December 1957 and wasn't completed until February 1959.

And there was a 15-month lag there during which -- presumably on the Government's theory, Judge Medina should have postponed his retirement.

In addition to which if he remains an active judge as I read the statutes, he would have to take a full case load until the en banc case was -- was decided and it would clearly interfere and impede retirements by the circuit judges which are encouraged.

Now, the retirements on our theory would permit the judge to retire, to participate in the decision, a new judge to be appointed who in turn could take on new duties in the Court.

Justice Hugo L. Black: What do you understand is the main reason for having en banc theory?

Mr. J. Franklin Fort: Well, that there are two main reasons, Your Honor that this Court has mentioned.

One is to decide the important issues and the other is to resolve inter-circuit conflicts.

Justice Hugo L. Black: Inside the Circuit?

Mr. J. Franklin Fort: Intra-circuit conflicts.

Justice Hugo L. Black: Well, if that is one of the reasons, does that cut against your argument in there?

Mr. J. Franklin Fort: You Honor, no, I don't -- well, it will depend upon what the constitution of the en banc court was but on the Government's rule, a judge can be dropped only but cannot be added.

Whereas in the rule that we have vacating, we taking the date on which the Court has convened, you will have a -- a court which presumably can take the case to a final decision with a recourse only to this Court after the decision is rendered.

Now, we have -- in the Second Circuit, we have had three changes.During the course of these en banc proceedings, Judge Medina retired, Judge Hincks has retired and Judge Friendly has been appointed.

There is a vacancy, there has not been a substitute appointed for Judge Hincks.

There is legislation pending which might result in two new justices being -- judges being appointed to that circuit and if the case is remanded, the -- the status of all of those judges perhaps will come into question.

Justice Hugo L. Black: But what I'm asking for was, if that's one of the reasons that I should think probably or I'm not sure that we have the points decided by the judges who are to remain there after that time would come nearer, stabilizing the law so far as the intra-circuit situation is concerned.

Mr. J. Franklin Fort: Well, that -- I think that it is -- is questionably, Your Honor, although it -- as I say, it depends upon the way the votes of the judges are cast.

Now, here we had a five-judge court below which was properly convened under the en banc statute and they were able to resolve the intra-circuit conflict.

On the Government's rule, Judge Medina would have been ineligible to sit on the decision and the conflict would not have been resolved.

I don't think that we can say that our rule is full proof but we think that it is -- creates much more certainty and will avoid delays in the functioning of the en banc court.

Chief Justice Earl Warren: Mr. Elman.

Argument of Philip Elman

Mr. Philip Elman: Mr. Chief Justice.

Section 1 of Title 28, United States Code provides -- the Supreme Court of the United States shall consist of a Chief Justice of the United States and eight Associate Justices, any six of whom shall constitute a quorum.

That language exactly parallels 46 (c), “a court en banc shall insist.”

If 46 (c) is to be interpreted as meaning a court en bank shall include, but shall not be limited to all active circuit judges of the circuit, it would be very difficult not to read Section 1 of Title 28 as meaning the Supreme Court of the United States shall include, but not be limited to the chief justice and eight associate justices.

On the question of the disqualification of retired members of this Court to participate in cases which they heard before retirement, there's no provision of the statute which says that they may not do so but there is a provision of the statute which provides affirmatively what duties -- what judicial duties may be performed by members of this Court.

That's Section 294 (a) of the Code which provides that any retired chief justice of the United States or associate justice of the Supreme Court may be designated and assigned by the Chief Justice of the United States to perform such judicial duties in any circuit including those of a circuit justice as he is willing to undertake by implication since the statute does not authorize the retired justice to be designated and assigned to sit in this Court, he may not do so.

The same argument we submit, same line of statutory construction should apply to Section 46 (c).

We do not think that this Court, unless it gives the words different meanings and different provisions can say that a court en -- en banc shall consist of -- of active circuit judges of the circuit who sit when the case is heard.

Mr. Justice Burton as I recall retired at a time when there were cases that he had participated in it remained undecided.

Now, that was true of Mr. Justice Minton and other justices who -- who retired from this Court.

You cannot say and it has never been suggested by anyone so far as we know that because he was -- the retired justice was a member of the Supreme Court consisting of a chief justice and eight associate justices of whom he was one and therefore, could participate in the decision and cast a vote after he was retired.

Retired judges of the Circuit -- of the -- of the Courts of Appeals maybe assigned judicial duties as they are willing to undertake.

Section 28 U.S.C. 294 says that any retired circuit or district judge may be designated and assigned to perform such judicial duties in any circuit as he is willing to undertake.

But that doesn't permit him to be assigned to judicial duties in any circuit that the statute says he is incompetent to undertake, anymore than that -- that would be true in the case of this Court.

In respect to en banc proceedings, a retired justice -- a retired judge is no different from a resigned judge.

Now, there have been some citations given to Your Honors.

We've discussed them in our brief and I'll -- and I -- I think perhaps there's been an indiscriminate proof of those cases and I will repeat.

There is no case in which any judge, retired circuit judge has sat in an en banc proceeding after his retirement, no case.

If he has retired before the en banc court was convened, there is no case in which the retired judge has sat.

There is no case in which a retired judge has voted to grant rehearing en banc.

There is a different problem as to denying rehearings en banc, they are participating in the deliberations.

There is no case in any circuit in which a retired judge or an assigned judge has cast an effective vote to grant rehearing en banc.

There is the related problem as to three-judge courts, the problem imposed by the Goldfine case numbered 36 -- 396 pending our petition for certiorari.

As I said, Section 46 (c) deals only with en banc proceedings and has nothing to do with three-judge decisions.

The only question -- the only possible question in those cases is whether -- where a judge has retired after the hearing but before the decision, whether it is necessary that there'd be an additional formal written designation and assignment.

There isn't a question of his competency to sit.

Of course a retired circuit judge may continue to sit if he is assigned.

The only question is the -- the formal one and no --

Justice Felix Frankfurter: Why do you call it formal because all of this is formal?

Mr. Philip Elman: There's a difference between -- there is a --

Justice Felix Frankfurter: Why do you call it formal?

Mr. Philip Elman: -- difference between the question of power --

Justice Felix Frankfurter: Well that --

Mr. Philip Elman: -- which cannot be cured by the any piece of paper --

Justice Felix Frankfurter: Well --

Mr. Philip Elman: -- no matter by who signed and there's the question of what kind of -- what is meant by the word designation and assignment?

Justice Felix Frankfurter: But that assumes that designation is formal and Congress may have made -- may have made the requirement as a piece of paper, the essential things.

I don't see that the argument is advanced by calling that formal and this power.

Mr. Philip Elman: I withdraw the word formal.

All I -- all I'm suggest -- all I'm saying is that as to three-judge panel, participation by a retired judge, there is no question or -- as to his power, his right, his competency --

Justice Felix Frankfurter: None.

Mr. Philip Elman: -- qualification.

Justice Felix Frankfurter: None if the requirement of the statute is fulfilled.

Mr. Philip Elman: That's right.

And the question is whether the statute requires a chief judge who -- who sits alongside judge -- whether chief -- putting it concretely, whether Chief Judge Woodbury had to give Judge Magruder sitting in the very same case --

Justice Felix Frankfurter: Yes.

Mr. Philip Elman: -- and a piece of paper saying -- saying, "I hereby assign you to sit in this case which -- in which you've been sitting all along and -- and in which you and I and -- and the third judge (Voice Overlap) --

Justice Felix Frankfurter: But -- but you answered Justice Black earlier that you don't have to bother by policy considerations if the statute commands.

Mr. Philip Elman: Precisely -- of course and -- and the question is what does a statute command in a three-judge --

Justice Felix Frankfurter: It says it should be designated.

I don't have to go beyond if Congress wants to make a red tape or a blue ribbon of requirement, I must vow to it.

Mr. Philip Elman: But the statute doesn't say that a designation shall consist of a piece of paper and to sit in that situation.

Justice Felix Frankfurter: But if you say that definition is satisfied because the -- and presumably, he did that to him, that's a different story again.

But I don't like to have cases of this technicality disposed of.

And by technicality, I don't need to use an invidious adjective.

I simply say confining word.

That's what I mean by a technicality.

Mr. Philip Elman: That problem is not presented in this case.

I mentioned it only because counsel has -- has referred to that situation which when I -- I am hoping only to make the point that it's distinguishable and raised it that way.

Justice Felix Frankfurter: Yes.

But you also mentioned that in your briefs and has -- has offered a great line to be drawn and --

Mr. Philip Elman: Only to distinguish what is not before the Court.

Justice Felix Frankfurter: I don't think I have to shut off while considering the whole nature of these problems or what to do with this conventional fact that retired judges are as a matter of fact, as a matter of practice, as a matter of design, fulfilling upon through of those who are really active judges.

Mr. Philip Elman: Yes, in all situations except en banc situations that it's the same.

The only question is one of the designation and assignment.

As to en banc, we repeat, even the -- even the -- in a certified designation and assignment signed by all of the members of this Court and the -- and the judicial conference and all the judicial counsels couldn't possibly give judgment, namely the right to participate in this case en banc.

Justice Potter Stewart: Just before you sit down, Mr. Elman.

Have you -- have you -- are you telling us that this precise situation has never arisen or --

Mr. Philip Elman: I am telling you that this is the only case in which this problem was discussed.

It is the only case in which counsel has objected to a -- the participation by the retired circuit judge in the decision.

There are -- there are cases which we have mentioned which reach same factual situation, was presented but wasn't referred to/ There are the two-third circuit cases involving Judge Maris as the Price case in the Ninth Circuit involving Judge Healey, nobody mentioned --

Justice Potter Stewart: And Hertzog in the Ninth Circuit.

Mr. Philip Elman: Hertzog -- Hertzog and Sawyer in the Ninth Circuit, different results, nobody discusses it, counsel don't -- doesn't raise it.

The Hertzog came here on petition for certiorari and wasn't advanced.

The curious thing, this is the first case in which the problem seems to have been --

Justice Potter Stewart: This precise question is what we are talking about.

Mr. Philip Elman: Yes.

And when the judge -- when Judge Clark in his dissenting opinion here that first raised the problem --

Justice Potter Stewart: By this precise question.

I mean the case of a -- of a circuit judge who was concededly by any test was an appropriate proper member of an en banc court because he was an active circuit judge at the time of the convening of that court.

Mr. Philip Elman: Yes, sir.

Justice Potter Stewart: But who's subsequently and prior to the announcement of the decision, retired.

That's the precise question.

Mr. Philip Elman: That's right.

That precise problem was discussed only in this case.

Justice Felix Frankfurter: And you don't mean to leave on me the impression for the -- stir the thought that this is so unique and unimportant, a trivial a situation, the writ -- that the writ should be dismissed as improbably be granted.

Mr. Philip Elman: I think -- I think it's important that the question be settled so that it doesn't become a widespread practice.

If it's settled right, it's unimportant.

If it's settled wrong, it -- it would become very important.