GREGORIO IGARTÚA de la ROSA, et al., Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellant.
No. 04-2186
United States Court of Appeals For the First Circuit
May 12, 2005
Before Boudin, Chief Judge, Torruella, Selya, Lynch, Howard and Lipez, Circuit Judges.
Per Curiam. Following a panel decision in this case, Igartua-De La Rosa v. United States, 386 F.3d 313 (1st Cir. 2004), a petition for rehearing was filed seeking panel rehearing or rehearing en bаnc. The panel thereafter granted rehearing and asked the parties to address two issues: first, the plaintiffs’ claim that the United States was in default of its treaty
Given the importance of the issues, a majority of the activе judges then voted that the rehearing should be en banc. The original panel comprised two active judges and one senior judge, all of whom participated in the panel decision which is now being reconsidеred. Under the governing statute, a court that rehears a case en banc is comprised of all active judges, except that any senior judge of the circuit may participate in an en banc court “reviewing a decision of a panel of which such judge was a member.”
The question has been raised whether the senior circuit judge who participated in the panel decision is eligible to sit on the en banc court in this case. A vote and a formal order have been requested on this issue. Accordingly, the active judges have determined, by a five to one vote, that the senior circuit judge is entitled to sit on the rehearing en banc.
For some years, it has been the practice of this court, when granting rehearing en banc, to vacate the panel decision in the same order. See e.g, United States v. Councilman, 385 F.3d 793, 793 (1st Cir. 2004); Savard v. Rhode Island, 338 F.3d 23, 25
Given this past practice, it could be argued in most cases where this court has previously reheard cаses en banc, that--in a mechanical sense--the en banc court is “reviewing” not the panel decision but the judgment of the district court. But this reading would ignore the thrust and purpose of the statute, the substance of what is happening when rehearing en banc is granted, and long established practice in this court. Each point deserves brief elaboration.
First, the thrust and purpose of the statute is to assure that where the senior circuit judge has participated in the panel decision, a rehearing of the case en banc will include the senior circuit judge as a member of the en banc court if he chooses to participatе. See S. Rep. No. 97-275, at 27 (1981). This gives the en banc court the benefit of the knowledge and judgment of all of the judges of this circuit who sat on the panel that rendered the initial decision. That rationale directly supports thе
Second, an en banc decision, following a panel decision, is in substance reviewing the work of the panel regаrdless of whether the panel opinion has or has not been formally withdrawn at the time of the rehearing. See, e.g., JOM, Inc. v. Adell Plastics, Inc., 193 F.3d 47, 49 (1st Cir. 1999) (en banc) (reinstating portion of vacated panel opinion). The issue on rehearing en banc virtually always turns on something the panel decided or failed to decide. Whether the panel decision is withdrawn at the beginning or end of the en banc process, the en banc court‘s action is in its essence one that either reaffirms or alters what the panel has decided.
Third, the unvarying practice of this court for many years has been to include on the en banc panel any senior circuit judge of this circuit who sаt on the original panel and chooses to participate. This practice is not affected by the fact that the panel in this case withdrew its decision while the en banc petition was pending; given our рast practice, a withdrawal of the panel decision by the en banc court itself has never prevented a senior circuit judge who sat on the panel from sitting on the en banc court.
Fourth, what little precedent exists on the interpretation of the statute directly supports the participation
Accordingly, the senior circuit judge who participated in the panel decision in this case is entitled to sit on the en banc court.
It is so ordered.
Dissent follows.
GREGORIO IGARTÚA de la ROSA, et al., Plaintiffs-Appellants, v. UNITED STATES OF AMERICA, Defendant-Appellant.
No. 04-2186
United States Court of Appeals For the First Circuit
On October 14, 2004, a duly constituted panel of this court promulgated its opinion rejecting petitioners’ claims, and issuing a judgment to said effect. Thereafter, they petitioned fоr rehearing by the panel, and in the alternative, for en banc consideration. After due deliberations, on March 14, 2005 the panel that heard the appeal unanimously voted to rehear the case, and consistent therewith, contemporaneously withdrew the panel opinion and judgment. Thus, the pending en banc request was mooted. The panel additionally ordered the United States and petitioners to file briefs on specific issues, set a date for oral argument, and invited intervention by amicus curiae. Both the United States and petitioners filed their briefs by April 14, 2005, and several amici intervened and filed briefs by April 22, 2005.
Thereafter, on April 25, 2005, motu propio, a majority of the active judges of the court, in an action which is unprecedented in my judicial experience, quashed the duly constituted three-judge panel, and decided that the matter should be considered by an expanded seven-judge en banc court. Although I do not question the legal authority of the majority of this court to so act, I believe that given the juncture of this appeal when it took this anomalous
It is clear that the decision of the rehearing panel to withdraw its decision and judgment preceded the en banc order. Thus, the senior judge in question does not qualify to sit on the en banc court, as the unаmbiguous language of the statute allows participation of a senior judge in an en banc proceeding only when it is “reviewing a decision of a panel of which such judge was a member.”
To my knowledge, no circuit has held otherwise. While the Seventh Circuit has interpreted Section 46(c) to permit a
A narrower interpretation of Section 46(c) is required by the instant circumstances, and supported by the legislative history. That sectiоn was originally amended in 1963 to provide that a senior judge “shall also be competent to sit as a judge of the court in banc in the rehearing of a case or controversy if he sat . . . at the original hearing thereof.” See S. Rep. 97-275,
In my view, we must draw the same distinction here. While a senior judge participatеd in the panel hearing of this case, panel rehearing had been granted and there is currently no panel decision available for the en banc court to review. I therefore vote against the senior judge‘s participation in en banc review of the decision below.
By the Court:
________/s/______________________
Richard Cushing Donovan, Clerk
[cc: Mr. Igartua de la Rosa, Mr. Katsas, Ms. Munoz-Acosta, Mr. Voltaire, Mr. Collette, & Mr. Singer.]