Fred M. Vinson

“ It is difficult to believe that Congress intended to give an automatic, second appeal to each litigant in a Court of Appeals composed of more than three judges. Yet petitioners would have us hold that such a 'horizontal' appeal is implicit in § 46. And, if petitioners are correct as to their claim that petitions for rehearing en banc must, as a matter of law, be passed upon by the full bench, the argument should apply equally to petitions requesting that the initial hearing of the case be en banc, because § 46 (c) treats 'hearings' and 'rehearings' with equality. ”

“ Litigants are certainly given no special standing to partake, as of right, in the court's decisions pertaining to arrangement of its calendar and the assignment of its cases to divisions. Just as the statute makes no provision binding the court to entertain every request that a particular case be assigned to a particular division, so it should not be construed to compel the court to entertain, en banc, motions for a hearing or rehearing en banc. ”

“ If, in the exercise of its discretion under s 46 (c) , a court denies litigants the privilege of reaching the ear of every circuit judge on the en banc question, there is still no reason to deny them access to the few circuit judges who must act initially, and perhaps decisively, on the matter for the others. Counsel's suggestion need not require any formal action by the Court; it need not be treated as a motion; it is enough if the court simply gives each litigant an opportunity to call attention to circumstances in a particular case which might warrant a rehearing en banc. ”

“ It is petitioners' theory that respondents had unjustly enriched themselves by wrongfully appropriating a 'tax loss' incurred by petitioner Western Pacific Railroad Corporation and applying it to the sole benefit of respondent Western Pacific Railroad Company. ”

“ Moreover, the most constructive way of resolving conflicts is to avoid them. Hence, insofar as possible, determinations en banc are indicated whenever it seems likely that a majority of all the active judges would reach a different result than the panel assigned to hear a case or which has heard it. Hearings en banc may be a resort also in cases extraordinary in scale-either because the amount involved is stupendous or because the issues are intricate enough to invoke the pooled wisdom of the circuit. ”

“ Indeed, if the three judges who decided the merits of this cause were of the opinion that counsel's request was 'without authority in law', it may well be that they simply considered themselves powerless to act in any way on the en banc question. Two judges on the panel were district judges. [24] One district judge dissented from the denial of a rehearing, and his understanding of the procedure which the Court of Appeals utilized to convene its full bench seems to differ from what was subsequently announced by six members of the court. ”

“ An interpretation of § 46 (c) , which authorizes litigants, of right, to compel nonsitting judges to act in every case, is certainly a departure from the tradition of three-judge courts-a most controversial change which was plainly not anticipated by Textile Mills. Yet Congress' purpose was codification, not alteration, of the rules pertaining to the administration of the courts. ”

“ See note 9, infra.↑ Revision of Federal Judicial Code, Preliminary Draft (of H.R. 3498, 79th Cong., 1st Sess.) , Committee Print (1945) , p. 11. The Reviser's Notes to § 46 (c) in this preliminary draft contained the following: 'Such subsection (c) is based on recommendations of Circuit Judge Albert B. Maris of the third circuit in his memorandum dated August 18, 1944, and submitted to the Committee on Revision of the Laws on August 21, 1944.'↑ H.R. 3498, 79th Cong., 1st Sess. ”