Rehearings in banc in Courts of Appeals.

• Jurisdiction: United States

Section 146. Rehearings in banc in Courts of Appeals.—In circuits that have five active circuit judges or more—and at present that means all except the First and Fourth—losing a case by a divided vote is not the end. Losing counsel may petition for a rehearing in banc.¹⁹

This practice was first employed in the Third Circuit, and, being challenged, was sustained by the Supreme Court in the Textile Mills case,²⁰ decided in 1941. The 1948 revision of the Judicial Code formalized the practice, and provided specifically for hearings in banc, by all the active circuit judges of the circuit.²¹ When the Ninth Circuit struck from its files as unauthorized an unsuccesful litigant's petition for a rehearing in banc, the Supreme Court in the Western Pacific Railroad Case²² reversed, pointing out, however, that whether a rehearing in banc should be granted could be determined either by the original panel or by the entire court. The practice accordingly differs from circuit to circuit,²³ but parties are clearly free to request in banc rehearings. Indeed, the Supreme Court has recently indicated that, where an intra-circuit conflict exists, such a conflict must be resolved by an in banc hearing, and can not be submitted to the Supreme Court for decision by means of a certificate.²⁴ (In the Federal judicial system, as in the Federal military system, the buck never passes up.)

Inasmuch as a rehearing in banc augments the tribunal hearing the cause, it has frequently happened that the court in banc reaches a result just the opposite of that reached by the panel.²⁵ For, not only will a rehearing in banc add from two to six additional circuit judges to the original bench, depending on the number in the circuit, but, inasmuch as such a reharing is limited by the statute to "all the active circuit judges of the circuit," ²⁶ it will frequently exclude two of the original panel,²⁷ and may of course exclude all three, in view of the great statutory flexibility for the composition of a Court of Appeals.²⁸

One point long remained open: Suppose one of the active circuit judges hearing the case retires prior to decision; may he participate? In a case where the judge who retired cast the deciding vote, United States v. American-Foreign S. S. Co.,²⁹ the Supreme Court, held, only recently, that the act of retirement pending decision terminated his eligibility to participate in the ultimate disposition of the cause.

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Notes:

^[19] a I follow the statute, cited below, in rendering this as "in banc" without italics. Actually, since the expression is of great antiquity, from the days of...