H. Keith Zahn v. International Paper Company

MOORE, and TIM- SMITH Before BERS, Judges. Circuit SMITH, Judge: J. JOSEPH novel We are confronted with diversity question will whether case proceed a class action be allowed to when under Fed.R.Civ.P. plaintiffs named meet the requirement of 28 U.S.C. § (a) representatives of unnamed but the question the class do not.1 That was plain by allotting to the unnamed 1. The district court named defect found that punitive good the claimed tiffs their share of had each made faith claims they ; therefore, damages ($10,000,000) damage $10,000, but excess legal certainty argue, class sta no final determination was to a incredible damages have be made until after land tus can each other lakefront plain pollution damage But the trial court been awarded. owners suffered accept ly puni- compelled Appellants a claim cure amount. 1034 spurious negative class member in a class action the late answered the independently satisfy require- the Judge Leddy must in the United States Chief jurisdictional ment as to amount.” We of Ver- the District District for Court agree 429). and affirm order below. He refused the

mont F.R.D. proceed ac- as a class allow the case to case, brought 23(b) This under Rule tion struck all references com- (3), would have been characterized as plaint the four persons other than “spurious” prior class action to the 21, 1971, plaintiffs. October named On 1966 amendment Rule 23. Since Judge Leddy in- certified order for new 23 was intended to substitute terlocutory appeal under 28 U.S.C. § functional, pragmatic approach for permis- 1292(b), granted and this court confusing conceptualism rule,2 old appeal. sion to question arose whether old re brought by complaint, the four ag precluded strictions which had property gregation named owners of lakefront on separate compute Champlain on Lake behalf themselves controversy spurious amount in in a similarly and some 200 other situated Snyder, class action discarded. were riparian lessees, sought landowners and flatly stated that the old cate compensatory damages punitive gories apply and doctrines still $40,000,000 the total amount dam- jurisdictional determination of amount: rights age property to their caused formerly class actions which would alleged pollution appellee’s the lake’s spurious, separate have been classified as Purportedly discharge waters. distinct claims aggre not be inadequately untreated or treated waste gated. Snyder is true that appellee’s pulp pap- from single now-closed jurisdictional met the making plant er Village of Ticon- amount; issue, as Court stated the deroga, passing into the via Ticon- lake it declined to “hold that ‘matter in con deroga sludge Creek created massive troversy” encompasses aggregation of lake; blanket on the bottom of mass- brought together all claims that can be sludge apparently es of peri- off break single suit, regardless any of whether up odically appellants’ prop- wash single plaintiff has a claim that exceeds erty. consequence appellants’ prop- aAs jurisdictional Snyder, amount.” erty any claimed to be unfit recre- 338, at (emphasis U.S. 89 S.Ct. at 1058 ational or other reasonable supplied). use and Snyder therefore does not permanently diminished in value. squarely every hold that unnamed mem proposed spurious ber of a class must “great satisfy individually With jurisdictional reluctance” the dis trict Harris, read appellants’ court 394 amount. attempt But to es cape Snyder by 89 S.Ct. L.Ed.2d 319 ambit of this route (1969) compel holding persuasive is met that “each internal evidence damages, unwarranted, tive legal however made exorbitant when it found to a cer purpose juris conferring tainty jurisdictional for the amount could diction. See Schroeder v. not be met. Nationwide Mu Given a mass tort situation F.Supp. 787, tual complained Insurance in which the conduct of has (S.D.N.Y.1965). Indeed, computing changing altered conform to so jurisdictional amount, punitive attitudes, multiple a claim for cietal and in which damages given scrutiny, punitive any is to be closer awards would in ease be greater the trial utility, Roginsky accorded discre see doubtful v. Rich tion, damages. ardson-Merrell, Inc., than a claim for actual 840- (2d 1967), persuaded See Brown Bank of America Trust & we are Savings Ass’n., F.Supp. 82, (N.D. district court has abused dis Ill.1968). punitive damages Since cretion. together damages considered with actual determining controversy, Wright, the amount See C. Handbook of the Law rejected necessarily tiie district (2d Courts at Federal ed. appellants’ punitive damages 1970). claim for might proposed meet member of the the rule limit so did the Court jurisdictional requirement, there.3 enunciated here; just do as the named stated The Court yet dismissed to all the action was spurious class ac- former for the except plaintiffs 306 Clark, one. that 23, by tion, the amended unaltered 589-590, 59 It is no U.S. at S.Ct. 744. plaintiff had “each that to have all, distinguish that rath basis to Clark ex- claim that his individual to show only one, er than of the named Id. jurisdictional amount.” ceeded the jurisdictional here meet re sup- (emphasis 335, at at 89 1056 S.Ct. point spuri quirement; in that is ag- plied). that Court stressed may not ous class action one gregation grounded doctrine, in stat- Similarly ride in on another's coattails. controversy,” utory phrase “matter in Appeals for the Fifth Cir the Court 23, adopted far antedated Rule Sny cuit, position upheld by whose was language early of an illustration der, purported action dismissed class joinder Troy case, Bank v. A. White- G. only proposed where of the member one head & Co.: class, member, not a named albeit having plaintiffs, more When two or showing requisite juris make a demands, separate unite and distinct amount, citing dictional Clark v. Paul economy in a for convenience Gray, Inc., supra. v. Pan Ameri Alvarez single suit, the de- is that it essential 992, can Life Insurance 375 F.2d requisite ju- mand of be each (5th Cir.), denied, 996-997 cert. 389 . 222 amount. . . risdictional 74, 827, U.S. 88 S.Ct. 19 L.Ed.2d 82 39, 40, 9, L.Ed. 81. U.S. 32 S.Ct. 56 (1967). 336, (em- at 89 S.Ct. at 1057 [Id. entirely sympathetic to areWe phasis supplied)] proposition the amended Rule that joinder analogy re- to cases And given rather than 23 “should a liberal mains valid: interpretation” in to restrictive order judgments under class The fact vindicate small federal claims. Eisen spurious formerly actions classified as 555, Jacquelin, & 391 563 Carlisle may effect as same now (2d 1968);, policies under but brought joinder pro- under the lying amended rule are determin certainly visions to treat is reason ative of this case.4 clear Rather joined differently them actions from light Snyder, 336, at 394 U.S. aggregation. purposes 1053, 89 S.Ct. the critical focus 337, (emphasis at 89 at 1057 [Id. S.Ct. resolving the issue us on must be original)] Accepting that, 28 U.S.C. 1332. one Inc., might 1938, Gray, application aggre how After Clark Paul ask 583, 744, preclude 306 83 U.S. 59 S.Ct. L.Ed. doctrine this class ac gation joinder congressional pur will the rule sustain the evolved /tion Ipose underlying cases that distinct claims could ¡amount aggregated applied requirement actions was to class section rising Snyder: Even under the new Federal Rules. i to check the stressed all, language quoted from clear After aside caseloads federal courts. above, ap- i this Court’s reliance on Clark still be maintained pears to offer an federal insurmountable obstacle court under of th banner Ie appellants, plaintiffs; equally named the Clark Court had that was but recognized originally However, one true in Clark and Alvarez. named Fortas, plainly 3. Indeed dissent and from the dissent joined read of Justice majority opinion deny Douglas, 342, laid down in the Justice id. at appellants escape. Snyder, 1053, this S.Ct. U.S. rejected policy at 1053. confronted and the same S.Ct. arguments based on the amended Rule majority opin- presently from made this clear both which ion, at 89 S.Ct. court. proceed were this case as a ac- come under a federal court’s control. significantly Howe, How.) tion it would in fact in- Freeman v. 65 U.S. (1861). Similarly, crease the burden the federal courts. was doctrine liability appellee’s had utilized to Once been es- ef enable courts to assuming tablished, ap- judgments and even fectuate their suits pellee’s vary properly defenses would not as to been before them. Su preme class, appellants’ Cauble, different members Tribe Ben-Hur v. enormously an early it would During time consum- U.S. 356 damages period, ancillary task to assess the concept jurisdic suffer- riparian only applied ed each of the 200 land- tion was situations regarded owners, necessary each of claims is whose use ef was separate operation and distinct. Indeed the fective of federal courts. Advisory did not Committee intend that Supreme Since decision Court’s 23(b)(3) ordinarily Rule be utilized Exchange, v. Moore New York Cotton Advisory a mass tort situation. Commit- (1926), concept however, U.S. 593 Note, (1966). tee 39 F.R.D. primarily ju- promote has been used policy Moreover a second consideration economy through dicial the avoidance Snyder relied on in is relevant here: Moore, litigation. piecemeal of involving local controversies claims to be cognizable independently state claim not settled on the basis of state law “can way in a federal court asserted was appropriately often most be tried state compulsory of federal counterclaim to Snyder, courts.” 394 U.S. at 89 claim. The held that state S.Ct. at 1059. claim heard in the federal court be persuaded though We are therefore even the federal claim was even- properly applied tually district court aggregation non- on the merits. The dismissed refusing juris- major doctrine in- Moore decision of the was one proposed spirations gen- development diction over the class of for principle this case. eral federal can courts ancillary jurisdiction to invoke resolve Affirmed. regard- single disputes, any in a action Judge (dissent- jurisdictional sufficiency, TIMBERS, aris- less of ing supporting plain- of ing) facts : out g., See, tiff’s “cause of action”. e. Hurn deference, me that it With seems Oursler, v. U.S. 238 Court’s reads the Harris, decision in 394 U.S. v. of Rules of the Federal enactment might worth, Procedure, it provisions for all for Civil with their joinder for the least has to be parties claims, rather than es- liberal of and major- significantly, growth pecially worth. More an- stimulated the ignores ity decision cillary jurisdiction here well-es- doctrine. The Rules prop- principle single that if a case is tablished concept broadened of a triable erly court, by allowing a federal court has controversy to be case or subject jurisdiction case joined matter over the parties in one all controversy entirety or Also, in its there- action. claims related main adjudicate fore can of related claims ancillary jurisdiction found courts ancillary parties independ- who have no helpful putting some doctrine use jurisdictional grounds. ent joinder devices, particularly of new federal Lower Rules I. courts, including ours, quick to rec- were ognize jurisdiction ancillary concept jurisdiction” was “ancillary jurisdictional problems, part jurisprudence has been a available to solve diversity many years. such as lack of or for courts controversy, originally attendant parties were often was oth- used to allow procedures. upon joinder grounds jurisdiction utilization of erwise without for Wyer, See, Dery rights g., e. 265 F.2d property assert v. reasonably along hav (2 party related 1959) (impleader of third Cir. independent Hartley basis an defendant); Formulabs, v. Inc. unduly 1963) expeditious burden (9 Pen F.2d 485 Cir. course, is, a limit (intervention some. There right); Jacobson can (3 of claims that number nature City Hosp., Cir. 392 F.2d 149 Atlantic 1968) conveniently together, tried but parties). (simple joinder But adjudi limit cating exceeded (9 Chai, Hymes Cir. see 407 F.2d 136 class here. all the members’ claims 1969) joinder parties).1 (simple purpose Indeed, the impelled one com- developments These provide an ef action device was to recently say ancil- that the mentator economically pro ficient and effective process lary jurisdiction “is in a doctrine small, adjudicating cedure numerous prevention of a rule of of evolution from closely related claims. Eisen v. Car See to a convenience unfairness basic (2 Jacquelin, lisle & 391 F.2d 555 resolving involved all issues 1968); Escott v. Barchris Construction subject court”. matter Corp., 1965). 340 F.2d 731 Cir. Note, Practice: Jurisdiction Federal Claims, Third-Party 11 Okla.L.Rev. II. Wright (1958), quoted Mill- in 7A & yet dealt has Court er, and Procedure Federal Practice ancillary jurisdiction with doctrine (1969). 1917, 29 The ma- at 590 n. § involving context of a decision greatly jority’s today retards decision Federal But of Civil Procedure. Rules “process this of evolution”. Gibbs, United Mine 383 Workers v. ancillary jurisdic An extension (1966), U.S. 715 commented adjudication permit an tion doctrine to impact ap- of the Rules while of the unnamed of the claims proving “pendent ju- of liberal use unquestionably in this action would be risdiction”, particularized application development.2 For harmonious with ancillary jurisdiction concept. In past although courts example, in the Gibbs, un- asserted a claim they an not invoke held Management der 303 of the Re- Labor § jurisdiction cillary hear claims Act lations and a claim unlaw- state by parties $10,000 less than asserted 20, conspiracy boycott. ful The Court joined under Rule jurisdic- pendent held that means contrary. recent decisions are to adjudicative tion the federal Research, See, g., v. Amer e. Inc. General Writing power over the claim. state Co., F.Supp. Employers’ 289 735 ican Ins. Court, opinion for the Justice Bren- (W.D.Mich.1968); Seagrave Lucas v. nan said: (D.Minn.1967) ; Corp., F.Supp. 277 338 “ Civil] . Chicago [Federal . Under Corp. Ti . v. Sales Johns-Manville Rules, impulse toward enter- (N.D.Ill. F.Supp. Co., Trust 261 905 tle & taining scope possible 1966). change position the broadest reflects This growing with fairness disposition action consistent realization that the claims, parties joinder parties; jurisdictionally insufficient claims against properly party split authority 1. third defendants In addition to a satisfy impleaded jurisdiction regard ancillary need not under Rule 14 use of with requirement, controversy joinder 20, amount Rule the courts have under Co., King Ins. 274 Farm Mut. v. State also held that the doctrine not be F.Supp. provide jurisdiction party 824 Schinella used over a (W.D.Ark.1967); 361, indispensable v. Local Iron Workers Union under determined to be (E.D.N.Y.1957), F.Supp. g., Lang Pipeline and the e. v. Colonial jurisdiction that, (3 1967), has been once federal or a 383 F.2d 986 Cir. parties original party seeking permissive of record fixed intervention un- subsequent action, 24(b), g., intervenors a class v. der Rule e. Hunt Tool Co. require Moore, 1954). Inc., (5 212 F.2d need not meet Cir. diversity amount, Dick as to ments Burnham, (2 197 F.2d inson v. Such a result would be consistent 1952). firmly established rule that claims encouraged. versy, satisfying jurisdic strongly remedies is Yet the claims question requirement Hum involves tional those because the jurisdiction parties] issues as as well con- do such that [the “are venience, ordinarily expected try them there has been some tend- ency application judicial proceeding, to limit all in one to cases power are, there state and federal federal courts to hear Hum, Indeed, equi- more than the whole”. ‘little 383 U.S. at 724-25. pendent jurisdiction epithets valent of different since con to charac- concerns group jurisdiction terize same stitutional circumstan- limitations on the courts, U.S., ces.’ of federal suit at 246. while the instant only statutory limitations, involves approach This limited is unneces recognizing jurisdiction case for over all sarily grudging. jurisdiction, Pendent class members and their claims here is judicial power, exists sense stronger. even Best, See Leather’s Inc. ‘arising there whenever is a claim un Mormaclynx, S. S. 451 F.2d 809- Constitution, der the Laws of [the] (2 1971); Ryan 11 Cir. cf. v. J. Walter States, made, the United and Treaties Thompson Co., 453 F.2d 446 Cir. made, or which shall be under their 1971), denied, cert. 406 U.S. 907 Authority U.S.Const., .,’ . . Art. III, relationship and the between III. permits claim the state claim majority’s reliance on the conclusion entire Harris, (1969), and Clark U.S. comprises before the court but one Inc., Gray, v. Paul constitutional ‘case.’ The federal being unsupportable. me strikes claim must have substance sufficient Snyder no the class had a subject member of jurisdiction confer matter satisfy in claim that the amount Levering Garrigues court. & controversy requirement; so Court Morrin, the Co. 289 U.S. 103. The ancillary jurisdiction never reached the state and federal claims derive must separate held the issue. The Court that operative from a common nucleus of presented by or on if, distinct claims fact. But considered re without gard behalf the various claimants could to their federal or state char aggregated $10,000 ju- supply acter, the plaintiff’s a claims are such risdictional amount. The Court reached ordinarily expected that he would (1) try that result because there was a set- judicial proceed them all in one precedent establishing tled line of ing, assuming substantiality then separate and distinct claims could not be issues, power the federal in there is aggregated jurisdictional for federal courts to hear the whole.” 383 purposes, (2) the the workload of U.S. at 724-25. substantially courts federal would be principles expressed by These as the precedents if over- increased those were apply equally Gibbs court to a situation position ruled. The was sum- Court’s where plaintiffs the claims of named following marized statement: a properly class action are before the for compelling reason “There is court but of other similar claims inter- a settled this Court to overturn subject members of the class lack matter congression- pretation important of an jurisdiction: judicial authority over the bur- to the al statute in order to add ancillary relationship claims if exists already dens of an overloaded having independent between the claims system.” at 341. court 394 U.S. jurisdictional grounds pendent and the “permits Snyder is decision conclusion The rationale inapplicable entire comprises us. action before the court issue ”; or, but applied precedent” one constitutional ‘case’ There no “settled line jurisdictional every 23(b)(3) deficiency Rule member of a “if, case, satisfy in the instant in con- considered with- must the amount regard out troversy requirement. Snyder to” court the amount in contro- ciliary Gray, jurisdiction concept, Inc. old referred to Clark v. Paul cases nonaggrega- apply such as should the first ease to Clark be wielded with discrimination. tion rule class action situation. 394 ato ease, as at 336-37. The other reason result points out, least here at one Snyder large avoid a increase in the —to $10,- plaintiff a claim in excess of had workload- of the federal also courts—is held that but the Court inapplicable controversy. present had each who a similar claim The four named here meet controversy re- must meet the amount requirements; a federal however, suit, quirement. seems That adjudicate court must their claims. The although action, a class have been burden on federal courts would not Snyder it as characterized court substantially if the claims increased such; merely permissive it was a case of of the other class were to be members joinder. prior to. the decided It was court; predom- heard the same amendment of which Rule questions inate of law or fact with making judgment the effect of a a regard to these claims must be common binding on class action to all claims or a class action could greatly plaintiffs, distin- unnamed guishing thus brought. not be If the trial de- joinder permissive sit- it from during cides trial that the res- before or old Rule 23. uation and olution of individual dif- issues will be nature importantly, whatever Most time-consuming, ficult it can refuse Clark, precedential try ancillary claims. The Gibbs substan decision has been provides authority value decision dis- wide Al tially recent decisions. reduced cretion in trial to determine though cited Clark arising whether all the claims out of approval, approval was directed or transaction should be occurrence holding to some not to Clark but together in tried federal court: aggregation claims. dicta Clark’s [pendent power jurisdiction] “That moreover, decided, Clark was Since every need not be exercised in case ancillary jurisdiction has ex doctrine found to exist. has con- above, grown. panded and discussed As sistently recognized pendent years many federal within few the last discretion, jurisdiction is doctrine a has discre held that court courts have right. justifica- plaintiff’s Its not of jurisdictionally adjudicate in to a tion judicial tion in considerations lies joined a claim for claim sufficient to economy, fairness and convenience if $10,000 than the claims derive more present a litigants; are if these operative primarily facts. from the same hesitate exer- should court Co., Hatridge Aetna Sur. v. Cas. & See .” 383 . jurisdiction . . cise 1969); (8 F.2d Stone v. Cir. U.S. at (4 1968); Stone, Ja Cir. majority in ac- position of this City Hospital, cobson Atlantic litigation duplicative promotes tion 1968); (3 v. Amer —a F.2d 149 Wilson Cir. in'the representative claims trial F.2d 558 ican Chain and Cable by the actions and identical federal court 1966); Wright, Federal Courts court. state members other class Mine Work Cf. United discourage named only this supra. Not does Gibbs, Alvarez v. But ers see right asserting their plaintiffs from Co., 375 F.2d Pan American Life Ins. use forum, restricts but it denied, a federal (5 Cir.), 992, 996-97 cert. maj class by referred to every extraordinary in which light situation ority.3 this distinct in ex- a claim has trend, the class member of and the Court’s enthu dispens- (unless a statute $10,000 cess of siastic endorsement Gibbs an- distinct, must establish that, member and each 3. Alvarez a held class action where jurisdictional amount. the claims of the are members several MANSFIELD, Judges KAUFMAN, ing and amount re- with the invoked). TIMBERS, Judge quirement Further- Chief FRIENDLY can and guarantee being more, disqualified, a that class there in the state action could be initiated It is therefore discourage Many court. states rehearing Ordered that and if the actions individual claims so en court banc is denied for want of an small suit insti- would have “by majority affirmative vote a juris- tuted in a state limited judges of circuit the circuit who are diction, likely most the class action device regular active service.” would be unavailable. majority’s compell- KAUFMAN, decision is not R. IRVING Circuit by Snyder Clark, opinion ed Judge (with and as the Judges whom MANS- disregards states. The result reached concur): FIELD and MULLIGAN development of a sound doctrine for is unfortunate that our brothers judicial more efficient and economical Timbers Oakes have chosen this case severely impairs administration and express disappointment their over efforts of those who modernize the would Although the result of the en vote. banc federal law class actions. It under- it is true hearing the Rule a authorizes re- strong policy cuts this Circuit’s favor- only en bane when ordered respect- class actions. I therefore “majority judges a the circuit fully dissent. regular circuit are in who serv- active ice”, governing 28 U.S.C. stat- ON PETITION FOR REHEARING ute, provides senior who a petition having rehearing A for a original hearing sat in the of the case ap- been filed herein counsel for the may, in the event en the case is reheard pellants, banc, appeal. vote on the merits of the Upon Accordingly, thereof, it would be ironic if consideration it Judges banced, urged by case were en petition Ordered that said and it Oakes, minority of Timbers since a hereby is denied. judges ultimately qualified vote carry day. on the merits would TIMBERS, Judge. Moreover, pre- unreasonably is not I dissent. Judge Smith, sumptuous predict ON PETITION REHEARING FOR thoroughly who authored a opinion considered Judge Moore, EN BANC panel, for the op- him, who posed concurred with petition rehearing containing A given rehearing if en banc suggestion appeal be reheard opportunity, adhered would have having en banc been filed herein original merits, had their views appellants, poll counsel for banc, en notwith- the case been reheard judges having the in active service standing sparse our in the citation judge, request taken on the of such a opinion. In in- either brother Timbers’s Judges HAYS, FEINBERG, and Circuit stance, ma- would have been a there having OAKES and voted to TIMBERS against jority voting those who favored grant petition, Judges the and Circuit rehearing a en banc.1 KAUFMAN, MANSFIELD MULLI- having deny petition, GAN voted to the In the this view of circumstances of opinions having by case, dissenting been filed Circuit I fear our brothers dissenting 1. As eight for the majority contention in the so not a of either or opinion Surely example posed by Judge that “The issue is a whether 3- the nine. judge minority only judges reg- a Court for which Mansfield where five in —on Congress provided 9-judge comple has a service ular active are available to vote ment, 44(a) (1970) may rehearing § 28 U.S.C. to a on whether order en banc — inappropriateness block the reconsideration en banc the a which illustrates of majority ,” simplistic “majority voting” the wants . . . . call we of those to our brothers’ attention four al- criterion for Rule by majority less a upon or determined than label senior much the too staked majority If a of the court. less than active. circuit, determine the of law expressed fully in concur the views I purpose procedure en banc of would Judge opinion. Mansfield’s logical extreme be eroded. Carried only it mean a case where (with would MANSFIELD, Judge Circuit of nine-member court members a Judges five R. whom Circuit IRVING (either of because vacan- concur): were available KAUFMAN and MULLIGAN disqualifications, cies, or the illnesses by expressed I concur views like) de- the law of circuit Judge Kaufman. by only the vote of three. termined may The time well for a have come just possibility such a was avoid Congressional of Title 28 review U.S.C. Congress provided of ma- that a vote a governs 46(c) proce- en banc § complement jority of the court’s full appeal, dure of courts because majority required. re- The should inconsistency apparent of its in declar- salutary quirement the further serves ing, hand, on the one that a senior hearings limiting purpose of en banc appeal panel heard an a member who exceptional importance questions of may participate ordering it to be into court drift than allow the rather but, other, he heard en banc requiring such the unfortunate habit of may participate in reconsid- an en banc minority hearings every a case where by “ma- ordered a vote eration may by desire a decision judges jority of circuit of the circuit judicial time court. At a full when regular active service.” who are appeal is at load of most courts of work However, dissent, by suggesting that high, sittings unprecedented en banc an requirement majority an can have exception. should continue to remain impact in cases unfortunate or unfair nothing ma- There is unfair about comple- full than court’s where less generally jority requirement, or either judges mis- is available vote ment exceptional im- In cases of this case. purpose statute conceives portance, or there is a conflict be- where 35(a) pursuant it. enacted circuits, expected tween my if the views were view dissent’s grant will certiorari pro- adopted, objective en banc questions For in issue. and settle the cedure would be threatened. many years reason this this goal 35(a) 46(c) and of Rule banc, Lopin- appeals see did not hear en uniformity tois achieve intracircuit Systems, sky Hertz Drive-Ur-Self assuring excep- questions of that where 1951) (concur- (2d importance presented tional law Judge ring Clark), preferring opinion of circuit will be established decisions, panel at least to adhere vote of the full court rath- Schick, recent. Learned where See three-judge panel. er than H.R. Court, Hopkins Press Johns Hand’s Cong., Rep.No.1246, 77th 1st Sess. (1970) pp. for the As 115-120. (1941); Hearings 1053; S. case, Judge present ob- Kaufman has Committee, Subcommittee the Senate served, feature is if ironic Cong., 77th 1st Sess. 14-16 judges joined in ma- senior who two voting judges en banc favor permitted jority opinion were voice mistakenly case as describe themselves may reasonably issue, in- representing majority of of “the will a against they hear- ferred that would vote (Fn. 1). they Actually the Court”. ing appeal banc. en represent majority. than is- less a The (dissent- Judge TIMBERS, judges sue here four a is whether of ing) nine-judge may : complement with1'a involving force an en banc reconsideration suit In this environmental alleged could in of Lake pollution result of the be- of law the waters circuit 1042 Leddy Judge Champlain, the late Chief of en banc This reconsideration. favor the District of comes of District Court for about because there a has been Vermont, vacancy judge class action de- reached his on this nine Court great nearly year eight reluctance”. 53 a and “with termination one of active affirming judges voting the dis- has abstained 433. from in this F.R.D. by vote, Judge by disqualification. a 2-1 case trict court Smith’s reason Fed. opinion 35(a) forthright majority R.App.P. rehearing panel ac- authorizes a only knowledged en confronted are bane when “[w]e ordered a “ma jority question judges of the whether a diver- circuit novel who are regular proceed sity only eight to case be allowed active service”. will With 23(b) judges, judge by a Fed.R.Civ.P. active when class action under one reason (3) disqualification meet the when the named is excluded from vot requirement of 28 whether to en banc but is included determining 1332(a) rep- but the unnamed

U.S.C. what a ma § constitutes jority, of the do appears not.” then the require resentatives rule five out F.2d at of seven to en banc the case. Such a result seems to already me be most un expressed my panel I have thwarting fortunate dissent, 1036, my clear intent F.2d at on views especially rule. is issue, unfortunate this novel the resolution which here operates permit where vitally viability a will of the affect minority judges the active class action. The record deny Court en banc particularly reconsideration in this case strikes me aas pressing one of the good more issues of one on which to im- resolve this day our issue to portant which the The not in best issue. dis- —an facts thinking legal scholars, lawyers legal pute. question starkly pre- is judges has devoted. issue sented. The resolved is both important respectfully I sure to recur. therefore but most em- phatically dissent from the denial of re- Finally, I think it unfortunate is most consideration en banc. en banc reconsideration such a question Judge impor I substantial of unusual am authorized to state that being despite dissenting opin- tance denied OAKES concurs in this is 4-3 judges vote ion.1 active of this Court in colleagues, Judges See, J., g., Waterman, 1. We note our issue. e. concur- Mansfield, ring Kaufman and have chosen to in Local UAW Robertshaw opinions dissenting Co., (2 file our from dissent. Controls F.2d Cir. overruling 1968) (en banc), We claim omniscience as how our Zdanok v. colleagues, Judges (2 1961). Senior Moore Glidden 288 F.2d 99 Cir. Smith, Judges would vote on the merits To the extent Kaufman rehearing event of a en this case. banc Mansfield believe that time “[t]he Congressional That of is not course the issue to which have well come for a part our dissent addressed. issue is review” of that § 28 U.S.C. three-judge minority (e) (1970) governs pro- whether en banc —on Congress provided cedure, agree. review, Court for which has we Such addi- nine-judge complement, 44(a) considering anomaly present tion to § U.S.C. (1970) may minority block the reconsideration which a can thwart the will — majority determining en banc wants of of a question import- substantial of unusual banc whether en reconsideration is to be despite might know, appropriately granted, ance. And we all also address guesswork colleagues question whether, of our as to how our itself to the en banc colleagues they matters, judges Senior if vote Senior all who elect- banc, judicial vote pursu- on whether to en their fact ed to continue service infrequently (1970) that not the author ant 28 U.S.C. should majority opinion panel fully Surely any of a divided has enfranchised. Senior original panel voted in favor of en bane reconsideration. who sat See, g., II, permitted e. Scenic Hudson to vote whether should be oi& cert, 1971), denied, (as per- he now is to en the ease banc U.S. 926 en other banc on the merits if the cas- case mitted to vote judges banced). es. And there are times when is en change their minds on the merits of an

Case Details

Case Name: H. Keith Zahn v. International Paper Company

Court Name: Court of Appeals for the Second Circuit

Date Published: Oct 18, 1972

Citation: 469 F.2d 1033

Docket Number: 742, Docket 71-2157

Court Abbreviation: 2d Cir.