363 U.S.

685
80 S.Ct. 1336
4 L.Ed.2d 1491

UNITED STATES of America, Petitioner,

v.
AMERICAN-FOREIGN STEAMSHIP CORP. et al.
No. 138.
Argued April 25, 1960.
Decided June 20, 1960.

Mr. Philip Elman, Washington, D.C., for petitioner.

Mr. J. Franklin Fort and Mr. Arthur M. Becker, Washington, D.C., for
respondents.
Mr. Justice STEWART delivered the opinion of the Court.

The question to be decided here is a narrow one. The Judicial Code provides
that in the United States Courts of Appeals '(c)ases and controversies shall be
heard and determined by a court or division of not more than three judges,
unless a hearing or rehearing before the court in banc is ordered by a majority
of the circuit judges of the circuit who are in active service.' It further provides
that '(a) court in banc shall consist of all active circuit judges of the circuit.' 28
U.S.C. 46(c), 28 U.S.C.A. 46(c). The sole issue presented is whether a
circuit judge who has retired is eligible under this statute to participate in the
decision of a case on rehearing en banc. We have concluded that he is not.

This litigation arose when the respondents, who had chartered ships from the
Government under the Merchant Ship Sales Act, 50 U.S.C.Appendix, 1735 et
seq., 50 U.S.C.A.Appendix, 1735 et seq., sued the Government in the District
Court for the Southern District of New York to recover amounts of allegedly
excessive charter hire which had been assessed by the Maritime Commission.
The Government moved to dismiss the libels on the ground that the claims
were barred by the two-year limitation period prescribed by the Suits in
Admiralty Act, 46 U.S.C. 745, 46 U.S.C.A. 745. The libels were dismissed
in the District Court on the authority of the Second Circuit decisions in Sword

Line, Inc., v. United States, 2 Cir., 228 F.2d 344; 2 Cir., 230 F.2d 75, affirmed
as to admiralty jurisdiction 351 U.S. 976, 76 S.Ct. 1047, 100 L.Ed. 1493, and
American Eastern Corp. v. United States, 2 Cir., 231 F.2d 664.1
3

The District Court's decisions were thereafter affirmed by the United States
Court of Appeals for the Second Circuit. That court, consisting of Circuit
Judges Medina and Hincks and retired District Judge Leibell, held that the
issues were controlled by the earlier Sword Line and American Eastern
decisions. The court's opinion stated, however, that '(i)f the subject-matter of
these appeals were res nova, we are by no means sure that our dispositions
would coincide with those made by the majority opinion in Sword Line and by
American Eastern. However, we will not overrule these recent decisions of
other panels of the court.' 265 F.2d 136, 142.

Thereafter, on December 19, 1957, the Court of Appeals granted the libellants'
petition for rehearing en banc and ordered that argument thereon be confined to
written briefs to be submitted within twenty days. On March 1, 1958, Judge
Medina retired pursuant to the provisions of 28 U.S.C. 371(b), 28 U.S.C.A.
371(b).2 Almost five months later, on July 28, 1958, the court issued its en banc
decision. Circuit Judges Hincks and Moore and retired Circuit Judge Medina
joined an opinion ordering the earlier three-judge decision withdrawn and
remanding the causes to the District Court, 265 F.2d 136, 144. Judges Clark
and Waterman dissented.3 In his dissenting opinion Judge Clark expressed
doubt as to a retired judge's eligibility to participate in an en banc decision. 265
F.2d 136, 153.

The Government then filed a petition for further rehearing en banc, directed
primarily to the question which had been raised by Judge Clark. The petition
was denied in an opinion by Judge Hincks joined by Judges Moore and
Medina, stating the view that '(s)ince Judge Medina was a member of the court
in banc which was duly constituted to hear and determine the issues raised by
the petition for rehearing, we think his subsequent retirement did not affect his
competence to participate in the decision thereafter reached.' 265 F.2d 136, 154.
Judges Clark and Waterman filed a separate statement in which they expressed
the opinion that Judge Medina's participation in the en banc determination was
precluded by the plain language of the controlling statute. 265 F.2d 136, 155.
Certiorari was granted to consider a question of importance to the Court of
Appeals in the administration of their judicial business. 361 U.S. 861, 80 S.Ct.
117, 4 L.Ed.2d 101.

As a preliminary to decision of the precise question before us it is important to

make clear that this case in no way involves the eligibility of a retired judge to

participate in the hearing, rehearing or determination of a case as a member of a

conventional three-judge Court of Appeals. Such participation is governed by
different statutory provisions. The Judicial Code explicitly provides that 'judges
designated or assigned' shall be 'competent to sit as judges' of such a court. 28
U.S.C. 43(b), 28 U.S.C.A. 43(b). Other provisions of the Code spell out in
detail the system under which designations and assignments of retired judges
are to be made. 28 U.S.C. 294, 295, 296, 28 U.S.C.A. 294296.4
7

Moreover, there is not involved here any issue as to the procedure to be

followed by a Court of Appeals in determining whether a hearing or rehearing
en banc is to be ordered. In the Western Pacific Railroad Case, Western Pac. R.
Corp. v. Western Pac. R. Co., 345 U.S. 247, 73 S.Ct. 656, 97 L.Ed. 986, it was
held that this question is largely to be left to intramural determination by each
of the Courts of Appeals. 'The court is left free to devise its own administrative
machinery to provide the means whereby a majority may order such a hearing.'
345 U.S., at page 250, 73 S.Ct. at page 658.5

Here we are concerned only with the specific provision of the Judicial Code
which ordains that en banc proceedings shall be 'heard and determined' by a
court consisting of all the 'active circuit judges' of the circuit involved. The
literal meaning of the words seems plain enough. An 'active' judge is a judge
who has not retired 'from regular active service.' 28 U.S.C. 371(b), 28
U.S.C.A. 371(b). A case or controversy is 'determined' when it is decided.

There is nothing in the history of the legislation to indicate that these words
should be understood to mean anything else than what they say. As the
Reviser's Note indicates, and as this Court pointed out in the Western Pacific
Railroad Case, 345 U.S., at pages 250, 251, 73 S.Ct. at page 658, where the
legislative history was fully reviewed, the statutory provision was added to the
Judicial Code in 1948 simply as a 'legislative ratification of Textile Mills
Securities Corp. v. Commissioner, 1941, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed.
249a decision which went no further than to sustain the power of a Court of
Appeals to order a hearing en banc.'6

10

The view that a retired circuit judge is eligible to participate in an en banc

decision thus finds support neither in the language of the controlling statute nor
in the circumstances of its enactment. Indeed, Congress may well have thought
that it would frustrate a basic purpose of the legislation not to confine the
power of en banc decision to the permanent active membership of a Court of
Appeals. En banc courts are the exception, not the rule. They are convened only
when extraordinary circumstances exist that call for authoritative consideration
and decision by those charged with the administration and development of the

law of the circuit.

11

When such circumstances appear, en banc determinations make 'for more

effective judicial administration. Conflicts within a circuit will be avoided.
Finality of decision in the circuit courts of appeal will be promoted. Those
considerations are especially important in view of the fact that in our federal
judicial system these courts are the courts of last resort in the run of ordinary
cases.' Textile Mills Securities Corp. v. Commissioner, 314 U.S., at pages 334
335, 62 S.Ct. at pages 277, 278. 'The principal utility of determinations by
the courts of appeals in banc is to enable the court to maintain its integrity as an
institution by making it possible for a majority of its judges always to control
and thereby to secure uniformity and continuity in its decisions, while enabling
the court at the same time to follow the efficient and time-saving procedure of
having panels of three judges hear and decide the vast majority of cases as to
which no division exists within the court.' Maris, Hearing and Rehearing Cases
in Banc, 1954, 14 F.R.D. 91, at page 96. As Judge Clark put it in the present
case, the evident policy of the statute was to provide 'that the active circuit
judges shall determine the major doctrinal trends of the future for their court *
* *.' 265 F.2d, at page 155.

12

Persuasive arguments could be advanced that an exception should be made to

permit a retired circuit judge to participate in en banc determination of cases
where, as here, he took part in the original three-judge hearing, or where, as
here, he had not yet retired when the en banc hearing was originally ordered.
Indeed, the Judicial Conference of the United States has approved suggested
legislative changes that would provide such an exception, and a bill to amend
the statute has been introduced in the Congress.7 But this only serves to
emphasize that if the statute is to be changed, it is for Congress, not for us, to
change it.

13

We conclude for these reasons that under existing legislation a retired circuit
judge is without power to participate in an en banc Court of Appeals
determination, and accordingly that the judgment must be set aside. American
Construction Co. v. Jacksonville, T. & K. W.R. Co., 148 U.S. 372, 387, 13
S.Ct. 758, 764, 37 L.Ed. 486; Frad v. Kelly, 302 U.S. 312, 316319, 58 S.Ct.
188, 191192, 82 L.Ed. 282. In reaching this conclusion we intimate no view
as to the merits of the underlying litigation. The judgment is vacated, and the
case remanded for further proceedings consistent with this opinion.

14

Vacated and remanded.

15

Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice

15

Mr. Justice HARLAN, whom Mr. Justice FRANKFURTER and Mr. Justice
BRENNAN join, dissenting.

16

I can find nothing in 28 U.S.C. 46(c), 28 U.S.C.A. 46(c) which requires the
decision the Court has made, and nothing in the decision which commends
itself to considerations of sound judicial administration. For convenience I
again quote 46(c):

17

'Cases and controversies shall be heard and determined by a court or division of

not more than three judges, unless a hearing or rehearing before the court in
banc is ordered by a majority of the circuit judges of the circuit who are in
active service. A court in banc shall consist of all active circuit judges of the
circuit.'

18

The statute need hardly be read, as the Court now holds it should be, as saying
that a case in an en banc court shall be 'heard and determined' by the active
circuit judges; still less does it say that a case is not 'determined' until the
decision of it is announced. The statute says no more than that ordinarily lawsuits before the Courts of Appeals are to be 'heard and determined' before a
panel of not more than three judges, but that a majority of the judges in active
service may order that a case be set for 'hearing or rehearing' before a court
consisting of all the active circuit judges of the circuit sitting en banc.

19

The 'heard and determined' clause on which the Court relies appears in a
sentence whose purposes were simply to codify the doctrine that a Court of
Appeals had power to sit en banc, Textile Mills Securities Corp. v.
Commissioner, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249, while making clear
that the usual procedure was to be decision by a three-judge panel.1 It is not an
unknown phenomenon in federal adjudication that a case, though heard by less
than the entire tribunal, may be decided according to the majority vote of all.
Cf. I.R.C., 7460, 26 U.S.C.A. 7460; see 2 Casey, Federal Tax Practice, 274
280. The traditional term, 'heard and determined,' in my view was designed
to do no more than reflect the obvious inappropriateness of such a procedure to
the deliberations of the Court of Appeals. There is no necessity for finding in
that term, in light of the context in which it appears, any Congressional
direction regarding the constitution of an en banc court.

20

The requirements governing the composition of an en banc court are found in

the last sentence of 46(c). All it provides is that such a court shall not include
retired circuit judges. The reason for such a provision is not hard to discern.
Congress would hardly have required a retired circuit judge to return to the
bench to attend at an en banc hearing and, as between leaving the matter to the

discretion of the individual judge and limiting the court to active judges, it is
not surprisingin view of the varying degrees of judicial activity of the retired
judges, and the administrative undesirability of having, for these purposes, a
court of unpredictable size and complementthat Congress should have
chosen the latter course.
21

The language and context, then, of 46(c) are given full effect by holding, as I
would, that the statute requires no more than that the members of an en banc
court be in active status at the time the case is argued or submitted. Such a
construction, for a court which decided the Textile Mills case, supra, should not
be difficult to reach. The issue there was whether the predecessor of 46(c),
conferring appellate jurisdiction on circuit courts consisting of three judges,
prevented adjudication by a circuit court composed of five judges, constituting
all the active circuit judges of the particular circuit there involved. In holding
that it did not, the Court, making a wise 'sacrifice of literalness for common
sense,' 314 U.S. at page 334, 62 S.Ct. at page 277, found no difficulty in rising
above the arithmetic of the predecessor of 46(c) so as to achieve a sensible
result. Still less should there be difficulty here in accommodating 46(c) to the
needs of sound judicial administration. So construed, the statute was complied
with here.2

22

But even were I to accept the Court's premisesa reading into the en banc
procedure of a requirement that only active judges may participate in the
'determination' of such cases, and a view of 46(c) as expressing a
Congressional policy against participation by retired judges in decisions setting
the 'major doctrinal trends' of a courtI could not agree that they justify this
decision. Choice of the date of announcement of a decision as the date of
'determination' of the cause may provide a touchstone which a disappointed
litigant searching for grounds for reversal can easily apply. However, it seems a
singularly infelicitous construction of this particular legislative language.3
'(L)aws are not abstract propositions. They are expressions of policy arising out
of specific situations and addressed to the attainment of particular ends.'
Frankfurter, Some Reflections on the Reading of Statutes, 47 Col.L.Rev. 527,
533. The exact point of time when a case is 'determined' is, as all informed
lawyers know, a question whose answer varies from case to case, and which is
known in a particular instance only to the judges themselves. Certainly, if an
opinionall argument, reflection, deliberation, and explication having been
completed by a court composed of active judges onlyis filed with the clerk of
the court on the morning following the retirement of one of its members, no
policy remotely discernible in 46(c) can justify a requirement that his vote in
the case should not be counted. If any such policy can be thought to be
reflected in the en banc statute, it should not be taken as requiring more than

that a judge, whose retirement comes at a time when meaningful things in the
process of adjudication still remain to be done, must withdraw from further
participation. But where such is not the case, the statute should not be thought
to require a precipitous termination of judicial affairs and the undoing of
adjudications properly made. In the nature of things the effectuation of such a
policy should be left with the various Courts of Appeals, if indeed not to the
conscience and good taste of the particular circuit judge concerned, as in most
instances of individual disqualification for other reasons. Cf. 28 U.S.C. 455,
28 U.S.C.A. 455.
23

It is not a ground for objection that such a construction would provide no test
which an outsider, whether litigant or reviewing court, could apply.4 As this
Court has observed: 'In our view, 46(c) is not addressed to litigants. It is
addressed to the Court of Appeals.' Western Pacific Railroad Case, 345 U.S.
247, 250, 73 S.Ct. 656, 657, 658, 97 L.Ed. 986. On its view of the statute the
Court should not have hesitated to adopt that construction of the 'heard and
determined' clause which most faithfully reflects its purpose merely because
those with whom the statute is not concerned are thereby hampered in voicing
their own objections.

24

Indeed, while I need express no definite view on the question, since I regard the
claim of noncompliance with 46(c) as untenable, I must say that the Court's
opinion presents no substantial reason for permitting a litigant to overturn a
judgment of the Court of Appeals through this sort of collateral attack on the
competence of one of its members to sit. Had Judge Medina found in 46(c), as
the Court holds he should have found, a statutory direction to withdraw from
further participation in this lawsuit, petitioner and not respondents would have
prevailed on the appeal, since that would have resulted in the affirmance, by an
equally divided Court of Appeals, of the District Court's judgment in favor of
the Government. Of course, to a litigant, there is no greater injury than to lose a
case, but I have difficulty understanding just what legal error has been
committed against petitioner, such as to warrant vacation by this Court of the
judgment below, thus giving the Government an opportunity to retrieve its
original loss in the en banc Court of Appeals. Clearly, Judge Medina was not a
mere interloper, or a usurper. He was, and is, a circuit judge of the United
States, bearing a commission signed by the President. Abstractions about
'competence' only becloud the matter. All that has happened is that Judge
Medina has exercised the right conferred by Congress (28 U.S.C. 371(b), 28
U.S.C.A. 371(b)) to retire from active service. Nothing in that action, or in
what the Court has said concerning the scope of 46(c), renders the judgment
of the court below vulnerable to attack. The cases cited by the Court dealt with
disqualifications based on policy grounds the effectuation of which called for a

vacation of the judgments rendered there. 5 No reason has been given why that
is so here.
25

I would affirm.

141 F.Supp. 58. Two of the libels were dismissed upon the same ground by
another district judge in an opinion which is unreported.

'Any justice or judge of the United States appointed to hold office during good
behavior may retain his office but retire from regular active service after
attaining the age of seventy years and after serving at least ten years
continuously or otherwise, or after attaining the age of sixty-five years and after
serving at last fifteen years continuously or otherwise.'

Judge Lumbard did not participate because of a prior connection with the
litigation as United States Attorney.

In accord with this flexible statutory scheme, retired federal judges the country
over have rendered devoted service in the trial and appellate courts of the
United States, voluntarily and without economic incentive of any kind.

An enlightening discussion by Judge Maris of the thorough administrative

machinery worked out by the Court of Appeals for the Third Circuit appears in
14 F.R.D. 91.

It is worth noting that the Textile Mills opinion itself carefully distinguished
between circuit judges in active service and those who have retired. 314 U.S., at
page 327, 62 S.Ct. at page 274.

At its Annual Meeting in September, 1959, the Judicial Conference of the

United States received a joint report of its Committees on Court Administration
and Revision of the Laws, stating their view that under the present law retired
judges are not eligible to participate in en banc proceedings. 'However, the
Committees thought it proper to permit a retired circuit judge to be a member of
the court of appeals sitting in banc in the rehearing of a case in which he has
sat, by assignment, in the panel of the court which heard the case originally.'
The Conference agreed and approved a draft of a bill, presented by the
Committees, which would add the following sentence to 28 U.S.C. 46(c), 28
U.S.C.A. 46(c): 'A circuit judge of the circuit who has retired from regular
active service 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 in the court or division at the
original hearing thereof.' Annual Report of the Proceedings of the Judicial

Conference of the United States (1959), pp. 910. A bill to effect this change
was introduced in the House of Representatives by Representative Celler on
April 5, 1960, as H.R. 11567, 86th Cong., 2d Sess. 106 Cong.Rec. 6865.
1

The Reviser's Note to 46 shows this to be true. 'This section preserves the
interpretation established by the Textile Mills case but provides in subsection
(c) that cases shall be heard by a court of not more than three judges unless the
court has provided for hearing in banc. This provision continues the tradition of
a three-judge appellate court and makes the decision of a division, the decision
of the court, unless rehearing in banc is ordered. It makes judges available for
other assignments, and permits a rotation of judges in such manner as to give to
each a maximum of time for the preparation of opinions.'

The order granting the respondents' petition for rehearing en banc required that
the case be submitted on written briefs, to be filed by Jan. 8, 1958. Judge
Medina retired on March 1, 1958. The action of the Judicial Conference in
1959, to which the Court refers (363 U.S. at page 690, 80 S.Ct. at page 1340,
note 7), does not of course bear upon the narrow issue before us. That action
was broadly directed to permitting retired circuit judges to sit on en banc courts
in instances where they had sat on the panel originally deciding the case.
Indeed, the recommendation of the Judicial Conference goes far to dilute the
force of the Court's attribution to Congress of a design to leave in the hands of
active circuit judges alone the setting of the 'major doctrinal trends' of their
courts.

In construing a statute far more amenable to a technical approach, we recently

rejected an analogous construction of the word 'determined.' United States v.
Price, 361 U.S. 304, 307, 80 S.Ct. 326, 328, 4 L.Ed.2d 334.

In this case, one cannot say that such a standard was not followed. Although the
decision was not announced until nearly five months after his retirement (265
F.2d 136, 144), Judge Medina had sat on the panel which originally heard the
case, and the briefs on reargument were submitted almost three months prior to
his retirement. He did not write an opinion in the case.

In Frad v. Kelly, 302 U.S. 312, 58 S.Ct. 188, 82 L.Ed. 282, a motion for
discharge from probation was entertained and granted by a judge not of the
district where sentence had been imposed. The evident purpose of the statute
limiting consideration of such matters to judges of the sentencing court was to
permit those judges to develop an integrated policy governing probation. Id.,
302 U.S. at page 318, 58 S.Ct. at page 192. To give effect to that policy, the
order of discharge was vacated. The dictum in American Construction Co. v.
Jacksonville, T. & K.W.R. Co., 148 U.S. 372, 387, 13 S.Ct. 758, 764, 37 L.Ed.

486, concerned a violation by a judge of the requirement that he not sit on an

appeal from a judgment or order which he had entered. It hardly needs
elucidation to recognize that disregard of such a policy infects the judgment
rendered.