Although 28 U.S.C. 46 (c) provides that a retired circuit judge may sit on an in bane court rehearing a case in which he participated at the original hearing, only regular active service circuit judges are vested with authority to vote whether to rehear a case in bane.
Appeals from the judgments of the trial courts in two cases were heard and determined by two separate three-judge divisions of the Court of Appeals for the Fourth Circuit. Sitting by designation as members of each of the divisions were senior judges of the Fourth Circuit. 1 Following decisions by both divisions, the unsuccessful parties petitioned for rehearings in banc pursuant to 28 U.S.C. 46 (c): 2
Accordingly, all Circuit Judges of the Fourth Circuit in regular active service and both senior judges of the Circuit have, pursuant to 28 U.S.C. 1254 (3), certified to us the question whether a senior judge of the circuit who was a member of the original division hearing a case may vote to determine whether the case should be reheard in banc. Because of the importance of the question to the administration of judicial business in the circuits, as well as to the parties in the two cases pending in the Fourth Circuit, we granted leave to and invited those parties to file briefs in response to the question certified. Upon consideration of the question and the briefs filed by the litigants on both sides of both pending cases, we conclude that the answer should be in the negative; senior circuit judges who are members of the originally assigned division hearing a case are not authorized by Congress to participate in the determination whether to rehear that case in banc.
The power of courts of appeals to hear or rehear cases in banc was first determined in Textile Mills Corp. v. Commissioner, 314 U.S. 326 (1941). In 1948, Congress provided legislative ratification of Textile Mills by enacting 46 (c) of the Judicial Code, which then provided that hearings or rehearings before courts of appeals in banc were to be:
In one of these latter cases, American-Foreign, a question arose under the language of the 1948 statute whether, if rehearing in banc was voted, senior judges were eligible to participate in the decision of that case on the merits. The Court held that senior judges were not eligible to sit. Congress in 1963 then enacted the present version of 46 (c), which provides that a senior judge who sat on the original division hearing a case is "competent to sit as a judge of the court in banc" in the merits rehearing of the case. (Emphasis added.) [417 U.S. 622, 626] But the language of the statute concerning how the court orders a rehearing in banc was not changed, except to reinforce the limitation on the grant of power by adding "regular" before "active service," sharpening the definition of which judges may participate in ordering a hearing or rehearing in banc.
The language of the present statute thus confines the power to order a rehearing in banc to those circuit judges who are in "regular active service." Although, as the Court has held, those judges are largely free to devise whatever procedures they choose to initiate the process of decision to order such a rehearing, and to decide who may participate in those preliminary procedures, see n. 3, supra, neither the Court nor Congress has suggested that any other than a regular active service judge is eligible to participate in the making of the decision whether to hear or rehear a case in banc. Obviously such a decision can be reached only by voting. As revealed by the decisional and statutory evolution of the institution of the in banc court, the eligibility of senior judges for participation therein has been the exception, not the rule. We are not at liberty to engraft upon the statute a meaning inconsistent with its historical limitations.
Indeed, the very purpose of the in banc court supports our conclusion that senior judges have not been authorized by implication to participate in ordering a hearing or rehearing in banc. As the Federal Rule indicates, supra, n. 2, the in banc court is normally reserved for questions of exceptional importance, or to secure or maintain uniformity of decision within the circuit. In the wise use of this exceptional power to "`determine the major doctrinal trends of the future'" for a particular circuit, American-Foreign, 363 U.S., at 690 , Congress appears to have contemplated the need for an intimate and current working knowledge of, among other [417 U.S. 622, 627] things, the decisions of the circuit, its pending cases, and the magnitude and nature of its future workload. Senior judges provide a judicial resource of extraordinary value by their willingness to undertake important assignments "without economic incentive of any kind." Id., at 688 n. 4. Consistent therewith, Congress has provided that when a senior judge has participated in the original division hearing, such senior judge may later sit on an in banc court rehearing that case; this was the purpose of the 1963 amendment to the Judicial Code. But voting on the merits of an in banc case is quite different from voting whether to rehear a case in banc, which is essentially a policy decision of judicial administration. Congress vested this latter authority and responsibility exclusively in "circuit judges of the circuit who are in regular active service," 28 U.S.C. 46 (c); because of their different nature, we cannot assume the grant of authority to do one includes authority to do the other.
The question certified to us is therefore answered in the negative. 4
MR. JUSTICE POWELL took no part in the consideration or decision of this case.
[ Footnote 2 ] Federal Rule App. Proc. 35 provides in part:
[ Footnote 3 ] The machinery devised by the Ninth Circuit in that case was one which governed the initiation of the polling of the court to determine whether it should hear or rehear a case in banc. Although there was some uncertainty whether indeed the Ninth Circuit had provided such machinery, 345 U.S. 247, 263 , its nature was to delegate to the three-judge division first hearing the case the power to initiate a poll of the court. Id., at 259. Two of the judges who were members of the division in that case were district judges. Id., at 263. This machinery was similar in kind to that now set forth in Fed. Rule App. Proc. 35 (b), supra, n. 2, by which a vote to hear or rehear a case in banc will not be taken unless such a vote is requested by a judge in regular active service, or a judge who was a member of the division that rendered a decision sought to be reheard.
[ Footnote 4 ] The only other courts of appeals which have discussed the issue have ruled similarly. Zahn v. International Paper Co., 469 F.2d 1033, 1040-1042 (CA2 1972) (statements and dissent upon denial of rehearing in banc); Allen v. Johnson, 391 F.2d 527, 532 (CA5 1968) (in banc). [417 U.S. 622, 628]